PATTALI MAKKAL KATCHI VS A. MAYILERUMPERUMAL Case

PATTALI MAKKAL KATCHI VS A. MAYILERUMPERUMAL Case

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



 Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 2600 of 2022
(@ SLP (Civil) No.19574 of 2021)
PATTALI MAKKAL KATCHI
.... Appellant(s)
Versus
A. MAYILERUMPERUMAL & ORS.
…. Respondent (s)
With
Civil Appeal No. 2601 of 2022
(@ SLP (Civil) No. 19378 of 2021)
Civil Appeal No. 2602 of 2022
(@ SLP (Civil) No.19916 of 2021)
Civil Appeal No. 2603 of 2022
(@ SLP (Civil) No.19776 of 2021)
Civil Appeal No. 2604 of 2022
(@ SLP (Civil) No.19582 of 2021)
Civil Appeal No. 2605 of 2022
(@ SLP (Civil) No.5077 of 2022 @ Diary No.28073 of
2021)
Civil Appeal No. 2606 of 2022
(@ SLP (Civil) No.19568 of 2021)
Civil Appeal No. 2607 of 2022
(@ SLP (Civil) No.19401 of 2021)
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Civil Appeal No. 2608 of 2022
(@ SLP (Civil) No.19683 of 2021)
Civil Appeal No. 2609 of 2022
(@ SLP (Civil) No. 20167 of 2021)
Civil Appeal No. 2610 of 2022
(@ SLP (Civil) No.21069 of 2021)
Civil Appeal No. 2611 of 2022
(@ SLP (Civil) No.21070 of 2021)
Civil Appeal Nos. 2612-2642 of 2022
(@ SLP (Civil) Nos.2312-2342 of 2022)
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
1. 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 Denotified Communities Act, 2021 was declared as
unconstitutional by the High Court of Madras, Madurai Bench by
a judgment dated 01.11.2021. The correctness of the said
judgment is challenged in these appeals.
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I. Background
2. Communal representation in public services existed in the
Madras Presidency prior to the Constitution of India coming into
force. The Madras High Court declared G.O. Ms. No. 3437 dated
21.11.1947, by which communal representation was provided,
as unconstitutional.The said judgment of the High Court was
upheld by this Court in State of Madras v. Srimathi
Champakam Dorairajan
1
. This Court held that the
classification made in the said G.O. proceeded on the basis of
religion, race and caste and constituted a violation of the
fundamental rights guaranteed under Article 29(2) of the
Constitution of India. On 18.06.1951, Article 15(4) was inserted
by the Constitution (First Amendment) Act, 1951, enabling the
State to make any special provision for advancement of socially
and educationally backward classes. Consequent to the
judgment of this Court, G.O. Ms. No. 2432 dated 27.09.1951
was issued by the Madras State adopting a 20-point roster, with
three seats reserved for Scheduled Castes and Scheduled Tribes
and five for Backward Classes, amounting to 15 per cent
reservation for Scheduled Castes and Scheduled Tribes together
and 25 per cent for Backward Classes. On 30.12.1954, G.O. Ms.
1 1951 SCR 525
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No. 2643 was issued increasing reservation for Scheduled
Castes and Scheduled Tribes combined to 16 per cent and
Backward Classes to 25 per cent. By G.O. Ms. No. 353 dated
31.01.1957, the State Government made a sub-classification
amongst Backward Classes. ‘Most Backward Communities’
were identified and educational concessions were extended to
them. There were 58 communities in the list of ‘Most
Backward Communities’, with Vanniakula Kshatriyas listed at
serial No. 1.
3. The State Government appointed a Backward Class
Commission under the Chairmanship of Shri A.N. Sattanathan, by
G.O. Ms. No. 842 dated 13.11.1969 “to make a scientific and
factual investigation of the conditions of backward classes in the
State and recommend specific measures of relief for their
advancement”. The Commission submitted its report in
November, 1970, recommending reservation of 33 per cent of
posts under the State Government for Backward Classes as well
as of seats in professional and educational institutions. After
considering the recommendations of the said Commission, the
State Government, by G.O. Ms. No. 695 dated 07.06.1971,
enhanced the existing reservation for Backward Classes from 25
per cent to 31 per cent and that for Scheduled Castes and
Scheduled Tribes from 16 per cent to 18 per cent with respect to
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seats in all kinds of educational institutions under Government,
local body and aided managements and posts for recruitment to
public services. On 01.02.1980, the reservation quota for
Backward Classes was enhanced to 50 per cent for appointment
to posts in services and admissions to educational institutions
under the State Government.
4. Later, the Tamil Nadu Second Backward Classes
Commission was appointed by the Government on 13.12.1982.
The said Commission was headed by Shri J.A. Ambasankar, I.A.S.
(retd.). A study was conducted by the Commission to determine
the level of backwardness on the basis of various indicators of
social and educational backwardness bearing points, with each
community assessed being awarded a score from a total of 15
points. According to the Chairman, such of those communities
which have secured 8, 9 and 10 points should be grouped as ‘A’,
those with 11, 12 and 13 points should be placed in group ‘B’
and those with 14 and 15 points should be categorised as group
‘C’. The Chairman of the Commission recommended
compartmental reservation on the basis of the different
groupings and provided mechanism for implementation of the
same. 14 members of the Commission differed from the views
expressed by the Chairman of the Tamil Nadu Second Backward
Classes Commission.
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5. On 30.07.1985, the State Government issued G.O. Ms. No.
1564 notifying 201 communities as Backward Classes
throughout the State of Tamil Nadu for the purposes of Articles
15(4) and 16(4) of the Constitution. G.O. Ms. Nos. 1566 and
1567 were also issued on the same day, classifying 39
communities as ‘Most Backward Classes’ (MBCs) and 68
communities as ‘Denotified Communities’ (DNCs), respectively.
The Vanniakula Kshatriya community was placed at sl. no. 26 in
the list of MBCs. On 28.03.1989, separate reservation of 20 per
cent, out of the available 50 per cent for Backward Classes, was
provided for MBCs and DNCs together and the remaining 30 per
cent set aside for Backward Classes. Later, on 22.06.1990, one
per cent separate reservation was provided to Scheduled Tribes
in public services and educational institutions. Thus, from 1990,
30 per cent reservation was provided for Backward Classes, 20
per cent for MBCs and DNCs, 18 per cent for Scheduled Castes
and 1 per cent for Scheduled Tribes, totalling to 69 per cent.

6. Act No. 45 of 1994, i.e., 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 (hereinafter, the “1994
Act”) was enacted to provide for reservation in admissions to
educational institutions in the State and for appointments in the
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services under the State. ‘Backward Classes of citizens’ are
defined under Section 3(a) thereof as “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
Denotified Communities”. Section 4 provides that reservation in
respect of annual permitted strength in educational institutions
for ‘Backward Classes of citizens’ and for persons belonging to
Scheduled Castes and Scheduled Tribes shall be 69 per cent.
According to Section 5, 69 per cent of appointments or posts in
the services under the State shall be reserved for ‘Backward
Classes of citizens’, Scheduled Castes and Scheduled Tribes.
The allocation of percentage of reservation for Backward
Classes, MBCs and DNCs, Scheduled Castes and Scheduled
Tribes remained unchanged. Additionally, by Section 7 of the
1994 Act, the Government reserved power to classify or subclassify, by notification, the ‘Backward Classes of citizens’ for
the purposes of the 1994 Act, on the basis of reports of the Tamil
Nadu Backward Classes Commission constituted on 15.03.1993.
On 19.07.1994, by G.O. Ms. No. 28, the Government of Tamil
Nadu, under Section 3(a) of the 1994 Act, notified 143
communities as Backward Classes, 41 communities as MBCs and
68 communities as DNCs. By the Constitution (Seventy-sixth
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Amendment) Act, 1994, which received the assent of the
President on 31.08.1994, the 1994 Act was placed in the Ninth
Schedule of the Constitution, as Entry 257-A.

7. The validity of the 1994 Act was challenged by way of writ
petitions filed in this Court. The said writ petitions were
disposed of by this Court on 13.07.2010 in S.V. Joshi v. State
of Karnataka
2
, after taking note of the fact that the exercise of
collecting quantifiable data to justify the reservation under the
1994 Act, pursuant to judgments of this Court in M. Nagaraj v.
Union of India
3 and Ashoka Kumar Thakur v. Union of
India
4
, had not been undertaken. Further, the State
Government was directed to place quantifiable data before the
Tamil Nadu Backward Classes Commission, on the basis of which
amongst other things, the Commission would decide the
quantum of reservation. No opinion was expressed on the
validity of the 1994 Act. Consequent to the judgment of this
Court in S.V. Joshi (supra), by G.O. Ms. No. 50 dated
11.07.2011, the Government of Tamil Nadu decided to continue
to implement reservation of 69 per cent as provided in the 1994
Act. It is mentioned therein that a report of the Tamil Nadu
Backward Classes Commission was submitted to the
Government on 08.07.2011 and subsequently placed before the
2 (2012) 7 SCC 41
3 (2006) 8 SCC 212
4 (2008) 6 SCC 1
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Cabinet, which was satisfied about the justification for
continuation of reservation of 69 per cent.
8. Thereafter, Writ Petition No.365 of 2012 was filed under
Article 32 of the Constitution challenging the 1994 Act, which is
pending consideration before this Court. On 21.03.2012, by
G.O. (Ms) No. 35, the Government prescribed additional terms of
reference to the Tamil Nadu Backward Classes Commission,
requesting the Commission to examine and recommend upon
the demand made by various communities to provide for
internal reservation, within the reservation provided to MBCs
and DNCs. There is a reference in the said G.O. to a writ
petition filed before the High Court of Madras as well as
representations made by members of the Vanniakula Kshatriya
community and other communities, seeking internal reservation
for each of these communities within the 20 per cent
reservation for MBCs and DNCs. On 13.06.2012, a report was
submitted by the Tamil Nadu Backward Classes Commission,
chaired by Justice M.S. Janarthanam (retd.) of the Madras High
Court. The Chairman recommended internal reservation of 10.5
per cent for the Vanniakula Kshatriyas, with the remaining six
members of the Commission submitting a dissent note.
9. The Tamil Nadu Backward Classes Commission was
reconstituted by G.O. (MS) No. 52 dated 08.07.2020 and Justice
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M. Thanikachalam (retd.) of the Madras High Court, was
appointed as the Chairman. One of the terms of reference
prescribed to the Backward Classes Commission was to examine
and recommend upon the demand made by various
communities to provide for internal reservation within the
reservation provided for MBCs. In addition thereto, another
Commission was constituted by G.O. (MS) No. 99 dated
21.12.2020, for the purpose of collection of caste-wise
quantifiable data and was headed by Justice A. Kulasekaran
(retd.) of the Madras High Court. The Government recognized
that the caste-wise data collected by the Ambasankar
Commission was more than three decades old and there was an
urgent need to collect caste and tribe wise data “as on date”. It
was stated in the said G.O. that the Commission was constituted
in response to the demands of various political parties and
community organizations.
10. A letter was written on 18.02.2021 by the Government to
Justice M. Thanikachalam, Chairman of the Tamil Nadu Backward
Classes Commission, to give his opinion regarding the possibility
of providing internal reservation amongst the communities listed
as MBCs and DNCs within the 20 per cent reservation made
available to them. Justice M. Thanikachalam promptly
responded on 22.02.2021, recommending sub-categorization
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amongst the MBCs and DNCs based on the proportion of their
population. Immediately thereafter, on 24.02.2021, a bill for
special reservation within the 20 per cent reserved for MBCs and
DNCs was placed before the State Legislative Assembly. On the
same day, the bill was passed and it received the assent of the
Governor on 26.02.2021. By the 2021 Act, reservation of seats
in educational institutions, including private educational
institutions, and reservation in appointment or posts in the
services under the State were provided in the following manner:
ten and a half per cent for ‘Part-MBC (V) Communities’, seven
per cent for ‘Part-MBC and DNC Communities’ and two and a half
per cent for ‘Part-MBC Communities’. In terms of the Schedule
annexed to the 2021 Act, ‘Part-MBC(V)’ consists of Vanniakula
Kshatriya community (including Vanniyar, Vanniya, Vannia
Gounder, Gounder or Kander, Padayachi, Palli and Agnikula
Kshatriya), ‘Part-MBC and DNC’ comprise 25 communities from
the MBCs and 68 DNCs and the remaining 22 communities of
MBCs come under the category of ‘Part-MBC’.
11. Writ petitions were filed in the High Court of Madras
assailing the constitutional validity of the 2021 Act. The High
Court framed the following points for consideration:
“(i) Whether the State Legislature has competency to
make the impugned Act after 102nd Constitutional
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Amendment Act, 2018 and before 105
th
 Constitutional
Amendment Act, 2021?
(ii) Whether an Act placed under the Ninth Schedule of
the Constitution of India can be varied without
amending the said Act?
(iii) Whether the State Government had the power to
take any decision with regard to Backward Classes in
the teeth of the Constitutional provisions, more
particularly, Article 338-B of the Constitution of India?
(iv) Whether the State has power to provide reservation
based on caste?
(v) Whether reservation can be provided without any
quantifiable data on population, socio educational
status and representation of the backward classes in
the services?
(vi) Whether the impugned Act providing reservation of
10.5% to MBC(V), without any quantifiable data, is in
violation of Articles 14, 15 and 16 of the Constitution of
India?
(vii) Whether the sub-classification of MBC into three
categories can be done solely based on adequate
population data, in the absence of any objective
criteria?”

12. The High Court answered points (i) to (iii) by holding that
the State Legislature has no competence to enact the 2021 Act.
The High Court further found that the internal reservation made
only on the basis of caste is violative of the Constitution.
Answering points (v) to (vii), the High Court was of the opinion
that there was no quantifiable data relating to the population,
socio-economic status and representation of the backward
classes in the services. Finally, on the basis of such conclusions,
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the 2021 Act was declared ultra vires the provisions of the
Constitution.
13. We have heard Dr. Abhishek Manu Singhvi, Mr. P. Wilson,
Mr. Rakesh Diwedi, Mr. Mukul Rohatgi, Mr. C.S. Vaidyanathan, Mr.
M. N. Rao and Mr. Radhakrishnan, learned Senior Counsel
appearing for the Appellants and Dr. Rajeev Dhawan, Mr. R.
Balasubramanian, Mr. K. M. Vijayan, Mr. S. Nagamuthu, Mr. Gopal
Sankaranarayanan, Mr. V. Prakash, Mr. Jaideep Gupta and Mr.
Colin Gonsalves, learned Senior Counsel appearing for the
Respondents.
II. Reference to a larger Bench
14. At the outset, it is necessary to deal with the preliminary
submission made by some Senior Counsel appearing for the
State of Tamil Nadu for reference of these appeals to a
Constitution Bench.

15. Dr. Abhishek Singhvi, Mr. Rakesh Dwivedi and Mr. Mukul
Rohatgi, learned Senior Counsel appearing for the State of Tamil
Nadu, submitted that the case involves interpretation of
constitutional provisions and therefore, it is appropriate that
these appeals are heard by a Constitution Bench. Mr. P. Wilson,
learned Senior Counsel appearing for the State and Mr. C.S.
Vaidyanathan and Mr. M. N. Rao, learned Senior Counsel
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appearing for the Appellants in Civil Appeals arising from SLP (C)
No. 19378 of 2021 and SLP (C) No. 19574 of 2021, respectively,
stated that there is no necessity of referring this matter to a
larger Bench.
16. Dr. Singhvi submitted that challenge to the 1994 Act is
pending consideration before a Constitution Bench of this Court.
He further stated that adjudication of the dispute in these
appeals would involve interpretation of the Constitution (One
Hundred and Fifth Amendment) Act, 2021 (hereinafter, the
“105th Amendment Act”). According to Dr. Singhvi, this Court
would have to decide whether the 105th Amendment Act is
clarificatory and dates back to the introduction of Article 342-A.
It is advisable that the said issue is decided by a larger Bench.
Mr. Dwivedi, supplementing the submissions of Dr. Singhvi,
referred to the findings of the High Court in the impugned
judgment on the lack of legislative competence of the State
Legislature in enacting the 2021 Act with respect to Section 31-B
of the Constitution. He stated that the words “repeal or amend”
appearing in Article 31-B would have to be construed by this
Court in these appeals to reach a determinative finding. On this
ground, he urged for these appeals to be decided by a larger
Bench.
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17. Appearing on behalf of the Respondents, Dr. Rajeev
Dhawan and Mr. Gopal Sankaranarayanan emphatically argued
that no ground has been made out for referring these appeals to
a larger Bench. Dr. Dhawan argued that the adjudication of the
dispute in these appeals does not involve interpretation of any
provision in the Constitution. Mr. Sankaranarayanan submitted
that reference to a Constitution Bench is made only when the
Court is satisfied that a substantial question of law as to
interpretation of the Constitution is involved, the determination
of which is necessary for disposal of the case. He placed
reliance on two judgments of this Court in Abdul Rahim Ismail
C. Rahimtoola v. State of Bombay
5
 and Shrimanth
Balasaheb Patil v. Speaker, Karnataka Legislative
Assembly
6
. As both the stated conditions are not satisfied in
the present case, he stated that there is absolutely no need for
reference to a larger Bench.
18. The vires of Rule 3 of the Indian Passport Rules, 1950 and
Section 3 of the Indian Passport Act (34 of 1920) fell for
consideration before this Court in Abdul Rahim Ismail C.
Rahimtoola (supra). An argument was advanced in that case
that the matter should be referred to a Bench of five Judges as a
constitutional question was raised. While referring to an earlier
5 (1960) 1 SCR 285
6 (2020) 2 SCC 595
15 | P a g e
judgment of this Court in Ebrahim Vazir Mavat v. State of
Bombay
7
, this Court held that the question of the impugned
provision and rule being in violation of Articles 19(1)(d) and
19(1)(e) had already been decided by this Court and therefore, it
cannot be said that any substantial question of law arises on the
interpretation of a constitutional provision. The request for
reference, was therefore, rejected.
19. In Shrimanth Balasaheb Patil (supra), this Court refused
to refer the dispute therein to a Constitution Bench on the
ground that there was no substantial question of law as to the
interpretation of the Constitution, the determination of which
was necessary for the disposal of the case. This Court was of
the opinion that the existence of substantial question of law
does not weigh on the stakes involved in the case, rather, it is
determined by the impact that the question would have on the
final determination of the case.
20. Article 145(3) of the Constitution provides that any case
involving substantial question of law as to the interpretation of
the Constitution should be heard by a minimum number of five
Judges. However, we are not in agreement with the submission
of Dr. Singhvi that the question of whether the 105th Amendment
Act is clarificatory involves interpretation of the 105th
7 1954 SCR 933
16 | P a g e
Amendment Act. Relying upon the parliamentary debates, Dr.
Singhvi submitted that the amendment has been brought only
for the purpose of clarifying the Constitution (One Hundred and
Second Amendment) Act, 2018 and, therefore, the 105th
Amendment Act should be deemed to have come into force from
15.08.2018, i.e., the date from which Article 342-A was given
effect. There is no necessity of interpreting the 105th
Amendment Act for the purpose of deciding the question raised
by Dr. Singhvi relating to the retrospectivity of the said
amendment.
21. The other point to be dealt with is the submission made by
Mr. Dwivedi on the question of interpretation of Article 31-B of
the Constitution. His submission is that the High Court erred in
holding that the State of Tamil Nadu did not have legislative
competence to enact a separate legislation varying the
provisions of the 1994 Act, placed in the Ninth Schedule, on the
ground that it falls foul of Article 31-B of the Constitution. The
submission of Mr. Dwivedi is that the words “repeal or amend” in
Article 31-B have to be interpreted to determine whether by
virtue of the said constitutional provision, the State lacked
legislative competence to enact a sui generis law on a subject
similar or ancillary to that of a statute placed in the Ninth
Schedule. Article 31-B has been construed by this Court in The
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Godavari Sugar Mills Ltd. v. S. B. Kamble
8
, Shri Ram Ram
Narain Medhi v. State of Bombay
9
, Sajjan Singh v. State
of Rajasthan
10
, Ramanlal Gulab Chand Shah v. State of
Gujarat
11
, State of Orissa v. Chandrasekhar Singh Bhoi
12
and State of Maharashtra v. Madhavrao Damodar Patil
13
.
In view of the above judgments, which are discussed later, it is
not necessary for this Court to refer these appeals to a larger
Bench.
III. Legislative competence of the State Legislature in
enactment of the 2021 Act
A. Effect of the Constitution (One Hundred and Second
Amendment) Act, 2018 and the Constitution (One
Hundred and Fifth Amendment) Act, 2021
22. The impugned 2021 Act was passed on 26.02.2021.
Relevant provisions of the Constitution as introduced by the
Constitution (One Hundred and Second Amendment) Act, 2018
(hereinafter, the “102nd Amendment Act”), brought into force
with effect from 15.08.2018, and as amended by the 105th
Amendment Act (italicized), which came into force from
15.08.2021 in terms of the notification dated 15.09.2021 issued
8 (1975) 1 SCC 696
9 1959 Supp (1) SCR 489
10 (1965) 1 SCR 933
11 (1969) 1 SCR 42
12 (1969) 2 SCC 334
13 (1968) 3 SCR 712
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by the Ministry of Social Justice and Empowerment, are as
below:
Article 338-B. National Commission for Backward
Classes.-
(1) There shall be a Commission for the socially and
educationally backward classes to be known as the
National Commission for Backward Classes.
xxx
(9) The Union and every State Government shall consult
the Commission on all major policy matters affecting
the socially and educationally backward classes.
Provided that nothing in this clause shall apply for
the purposes of clause (3) of article 342A.
Article 342-A. Socially and educationally
backward classes.-
(1) The President may with respect to any State or
Union territory, and where it is a State, after
consultation with the Governor thereof, by public
notification, specify the socially and educationally
backward classes in the Central List which shall for the
purposes of the Central Government be deemed to be
socially and educationally backward classes in relation
to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from
the Central List of socially and educationally backward
classes specified in a notification issued under clause
(1) any socially and educationally backward class, but
save as aforesaid a notification issued under the said
clause shall not be varied by any subsequent
notification.
Explanation.- For the purposes of clauses (1) and
(2), the expression “Central List” means the list of
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socially and educationally backward classes prepared
and maintained by and for the Central Government.
(3) Notwithstanding anything contained in clauses (1)
and (2), every State or Union territory may, by law,
prepare and maintain, for its own purposes, a list of
socially and educationally backward classes, entries in
which may be different from the Central List.
Article 366. Definitions.-
xxx
(26C) “socially and educationally backward classes”
means such backward classes as are so deemed under
article 342A for the purposes of the Central
Government or the State or Union territory, as the case
may be.
23. The High Court observed that the majority opinion of this
Court in Dr Jaishri Laxmanrao Patil v. Chief Minister
14
concluded that the powers of the State Legislatures to identify
backward classes have been ousted and the power to modify the
list of socially and educationally backward classes (SEBCs) stood
vested in the Parliament, after insertion of Article 342-A in the
Constitution by the 102nd Amendment Act. The High Court
rejected the contention on behalf of the State that the 105th
Amendment Act restored the power of the States to identify and
notify backward classes. The High Court was of the view that
the 2021 Act came into existence on 26.02.2021, whereas the
105th Amendment Act was enacted on 19.08.2021. Thus,
14 (2021) 8 SCC 1
20 | P a g e
according to the High Court, the impugned legislation, which
was brought into effect prior to the enactment of the 105th
Amendment Act, was unconstitutional in view of the majority
opinion in Dr Jaishri Laxmanrao Patil (supra).
24. It was contended on behalf of the State by Dr. Singhvi that
the 2021 Act does not identify, exclude or include any
community in relation to the list of backward classes. The said
exercise was already done by G.O. Ms. No. 28 dated 19.07.1994
under the 1994 Act. What is instead sought to be done by the
2021 Act is sub-classification of the MBCs and allocation of 10.5
per cent reservation for the Vanniakula Kshatriya community
within the 20 per cent earmarked for MBCs and DNCs, which is
not barred to be undertaken by the State by virtue of the 102nd
Amendment Act. Though a writ petition challenging the 1994
Act is pending consideration, there has been no interim order
staying the operation of the said legislation. He proceeded to
submit that the 105th Amendment Act is essentially clarificatory
in nature. After the judgment of this Court in Dr Jaishri
Laxmanrao Patil (supra), the Parliament, in exercise of its
constituent power, recognised the imminent need of clarification
of Articles 338-B, 342-A and 366(26C) of the Constitution and
sought to make amendments to reflect what, according to Dr.
Singhvi, was always the intention behind these provisions, i.e.,
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for the States to continue to hold and exercise the power of
identification of backward classes for reservation to educational
institutions and services under the States. To emphasize this
claim, Dr. Singhvi took the Court through the Statement of
Objects and Reasons of the 105th Amendment Act as well as
some of the debates and speeches in both houses of the
Parliament on the Constitution (One Hundredth and Twentyseventh Amendment) Bill, 2021. He further sought to impress
upon this Court that the only real and operative change brought
about by the 105th Amendment Act is the addition of clause (3)
to Article 342-A, which is essentially a procedural requirement
on a State / Union Territory to prepare and maintain a list of
SEBCs for its own purposes. He relied upon the judgment of this
Court in K.S. Paripoornan v. State of Kerala
15
to assert that
the 105th Amendment Act, being a clarificatory amendment
dealing predominantly with procedure and not a substantive
amendment, will have retrospective affect. Further, support was
sought from this Court’s judgment in Shri Prithvi Cotton Mills
Ltd. v. Broach Borough Municipality
16
 to plead that while
undoubtedly the Parliament had the power to enact both the
102nd Constitution Amendment Act and the 105th Constitution
Amendment Act, the latter sought to clarify the circumstances
15 (1994) 5 SCC 593
16 (1969) 2 SCC 283
22 | P a g e
which gave rise to the Court’s interpretation of the former and
would, thus, be retrospective.
25. In the alternative, Mr. Dwivedi argued that the judgment of
this Court in Dr Jaishri Laxmanrao Patil (supra) only excluded
the specification of SEBCs by the States under the 102nd
Amendment Act. If a community was already included in the
State’s list of SEBCs, which had been saved by the said
judgment in exercise of the Court’s powers under Article 142 till
the notification of the List by the President,, there was no bar on
the State to provide for sub-classification.
26. The contention put forth on behalf of the Respondents by
Mr. Sankaranarayanan was that the State did not have
legislative competence to identify SEBCs on 26.02.2021, the
date the 2021 Act came into force. He submitted that the 102nd
Constitutional Amendment Act was in force on 26.02.2021,
according to which SEBCs can be specified for the purposes of
the Constitution only by the President, according to the majority
opinion of this Court in Dr Jaishri Laxmanrao Patil (supra). He
supported the judgment of the High Court and contended that
the State lacked legislative competence to identify a particular
community for allocating 10.5 per cent reservation within the
MBCs. On the subject of the 105th Amendment Act, it was
argued that the said amendment is unquestionably prospective.
23 | P a g e
Wherever it had been the intention of the Parliament to give
retrospective effect to constitutional amendments, it was
specifically mentioned in the relevant amendment. Our
attention was drawn to the Constitution (First Amendment) Act,
1951, by which changes to Article 19(2) were given
retrospective effect from the date of commencement of the
Constitution and Article 31-B was inserted containing a
validating provision, thereby making it applicable prior to the
date of the amendment to all laws made before such date and
notwithstanding any judgment. We were also directed to Article
329-A, which excluded applicability of laws made prior to the
Constitution (Thirty-ninth) Amendment Act, 1975 to specified
elections and also validated such elections which may have
been declared to be void under law or any order made by any
court, before such commencement. Lastly, the Constitution
(Eighty-fifth Amendment) Act, 2001 was pointed out whereby
the changes to Article 16(4-A) were given retrospective effect
from 17.06.1995. It was submitted that, unlike the cited
instances, there is not even a slight indication in the 105th
Amendment Act that it was intended to be retrospective in
operation.
27. Countering the submission made on behalf of the
Appellants as to the 105th Amendment Act being clarificatory in
24 | P a g e
nature, it was further argued by Mr. Sankaranarayanan that a
judgment of this Court cannot be clarified by the Parliament, as
the Supreme Court is the final arbiter with respect to
interpretation of the Constitution. He cited Janapada Sabha
Chhindwara v. Central Provinces Syndicate Ltd.
17 and a
judgment of the U.S. Supreme Court in Plaut v. Spendthrift
Farm Inc.
18
, amongst others, to elaborate on the limitations on
the power of the Legislature to ‘clarify’ an interpretation of law
rendered by this Court. He further submitted that the 105th
Amendment Act cannot be treated to be a validating provision,
as there has been no ‘invalidation’ of the 102nd Amendment Act.
With the 102nd Amendment Act holding force at the time of
enactment of the 2021 Act, he asserted that earmarking 10.5
per cent to one community is tantamount to identifying a
community for the benefit of reservation, which can be done
only by the President as per the 102nd Amendment Act and
therefore, the 2021 Act is an impermissible exercise on the part
of the State Legislature. He was vehement in his argument that
a statute which is void ab initio for lack of legislative
competence cannot be validated by a subsequent amendment
and placed reliance on Saghir Ahmad v. State of U.P.
19
,
17 (1970) 1 SCC 509
18 514 U.S. 211 (1995)
19 (1955) 1 SCR 707
25 | P a g e
M.P.V. Sundararamier & Co. v. State of A.P.
20
 and Deep
Chand v. State of Uttar Pradesh
21
. Dr. Dhawan, joining Mr.
Sankaranarayanan in asserting that the 105th Amendment Act is
prospective in operation, contested the claim of the Appellants,
on the 105th Amendment Act being clarificatory and at the same
time removing the basis of the judgment of this Court in Dr
Jaishri Laxmanrao Patil (supra), as contradictory. According
to Dr. Dhawan, the amendment could either be clarificatory of
the Parliament’s intention or purport to remove the basis of this
Court’s judgment, but could not be both.
28. On the issue of the 105th Amendment Act, we are unable to
agree with the contention of the Appellants that the said
amendment is clarificatory and dates back to the introduction of
Article 342-A. The Respondents were right in submitting that the
Parliament had expressly specified the retrospectivity of an
amendment, whenever it intended to give any amendment
retrospective effect. As such we do not intend to scrutinize the
Statement of Objects and Reasons of and the parliamentary
debates on the Constitution (One Hundredth and Twenty-seventh
Amendment) Bill, 2021, as it is well established and also
reiterated in the majority decision in Dr Jaishri Laxmanrao
Patil that where provisions of a statute are ambiguous, the first
20 1958 SCR 1422
21 1959 Supp (2) SCR 8
26 | P a g e
attempt should be to find meaning in the statute itself, failing
which the court may turn to external aids. We have not been
called upon to interpret the 105th Amendment Act and nor do we
find any vagueness as regards when the 105th Amendment Act
has come into effect. The 105th Amendment Act cannot be said
to be a validating amendment, as admittedly the 102nd
Amendment Act has not been invalidated by this Court. We do
not find it necessary to deal with the judgments cited by the
Respondents on the impermissibility of clarification of a
judgment of this Court by the Parliament, as even the Appellants
do not contend that the 105th Amendment Act was made to
clarify the judgment of this Court in Dr Jaishri Laxmanrao
Patil (supra).
29. Rule 350-A of the Rules framed by the Broach Borough
Municipality, by which a rate on land was fixed at a percentage
of the valuation based upon capital value, was declared ultra
vires Section 73 of the Bombay Municipal Boroughs Act, 1925 in
Patel Gordhandas Hargovindas v. Municipal
Commissioner, Ahmedabad
22
. The Legislature of Gujarat
passed the Gujarat Imposition of Taxes by Municipalities
(Validation) Act, 1963, validating the rates so imposed. The said
validating legislation was challenged before this Court in Shri
22 (1964) 2 SCR 608
27 | P a g e
Prithvi Cotton Mills Ltd. (supra). This Court was of the
opinion that the defect pointed out by the judgment in Patel
Gordhandas Hargovindas (supra), being that Section 73 had
not authorised the levy of a tax but that of a “rate”, which had
acquired a special meaning in legislative practice as held by this
Court, was cured by the validating legislation. The Court upheld
the validating statute on the ground that a new meaning to the
expression "rate" was legislatively ascribed, thus putting out of
action the effect of the decisions of the courts to the contrary.
The Appellants cannot take aid of this judgment to argue that
the 105th Amendment Act has to be given retrospective effect,
since the 105th Amendment Act cannot be treated as a validating
amendment as no part of the 102nd Amendment Act has been
invalidated. The contention of the Appellants that the 105th
Amendment Act, being an amendment relating to procedure,
has to be construed as retrospective along the lines of K.S.
Paripoornan (supra), is misconceived. Identifying certain
communities which are to be deemed as SEBCs for the purposes
of the Central Government and the States, respectively, cannot
be said to be a matter of procedure. The procedural aspect of
the 102nd Amendment Act and the 105th Amendment Act is only
the manner of publication of the lists of SEBCs, whereas the
substantive element of the said amendments is identifying and
28 | P a g e
recognising certain communities as SEBCs. Thus, we see no
force in the submission of the Appellants that the 105th
Amendment Act is clarificatory in nature and has to be given
retrospective effect from the date on which the 102nd
Amendment Act came into effect.
30. At the time of enactment of the 2021 Act, there is no doubt
therefore, that the 102nd Amendment Act held force. The
majority in Dr Jaishri Laxmanrao Patil (supra) was of the view
that 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. The list of
SEBCs to be notified by the President under Article 342-A shall
be the only list for the purposes of the Constitution. It was
concluded in the said judgment that the change brought about
by the 102nd Amendment Act, especially under Article 342-A,
was only with respect to the process of identification of SEBCs
and their list. It was categorically held that the power to frame
policies and legislation with regard to all other matters, i.e., the
welfare schemes for SEBCs, setting up of institutions, grants,
scholarships, extent of reservation and special provisions under
Articles 15(4), 15(5) and 16(4) are entirely with the State
Government in relation to its institutions and its public services.
It was further clarified that the extent of reservation, the kind of
29 | P a g e
benefits, the quantum of scholarships, the number of schools
which are to be specially provided under Article 15(4) or any
other beneficial or welfare scheme conceivable under Article
15(4) can all be achieved by the State through its legislative and
executive powers. Recognising that the President was yet to
prepare and publish a list under Article 342-A(1), the Court held
that a comprehensive list should be published expeditiously and
in exercise of its powers under Article 142 of the Constitution,
the Court directed till the time of the publication of such list, the
SEBC lists prepared by the States would continue to be
operative.
31. Backward Classes, MBCs and DNCs have been identified for
reservation in educational institutions and for public
employment by G.O. Ms. No. 28 dated 19.07.1994 under the
1994 Act. 30 per cent reservation was provided for Backward
Classes and 20 per cent for MBCs and DNCs together. The
Vanniakula Kshatriya community has consistently featured in the
list of MBCs since 1957 and was also included in the list of MBCs
in G.O. Ms. No. 28 dated 19.07.1994, pursuant to the 1994 Act.
By the 2021 Act, 10.5 per cent out of 20 per cent reservation for
MBCs and DNCs was earmarked for the Vanniakula Kshatriya
community. Identification of the Vanniakula Kshatriyas as a
community within the MBCs was not the subject-matter of the
30 | P a g e
2021 Act, as this exercise had already been completed pursuant
to the 1994 Act. 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). What the 102nd Amendment prohibits the State
from undertaking is identifying a caste as SEBC or including or
excluding a community from the list notified by the President.
We are not in agreement with the contention of the Respondents
that determining the extent of reservation for a community
amongst the list of Most Backward Classes amounts to
identification. In view thereof, the High Court has committed an
error in holding that the 2021 Act is violative of Article 342-A.
B. Permissibility of sub-classification amongst backward
classes
32. Placing reliance on the judgment of this Court in E.V.
Chinnaiah v. State of A.P.
23
, the High Court held that all
castes including the sub-castes, races, tribes mentioned in the
list are to be members of one group for the purpose of the
Constitution and cannot be further sub-divided so as to give
23 (2005) 1 SCC 394
31 | P a g e
more preference to a miniscule portion thereof. The High Court
also observed that as per E.V. Chinnaiah (supra), all the castes
included in the Schedule under Article 341 of the Constitution
would be ‘deemed to be’ one class of persons.
33. On behalf of the Appellants, it was contended that the
High Court committed an error in relying upon E.V. Chinnaiah
(supra), which pertained to the interpretation of Articles 341
and 342, to come to the conclusion that classification is not
permissible even in respect of backward classes. It was argued
that it is clear from Indra Sawhney v. Union of India
24
that
sub-classification of backward classes is permissible. Stress was
also laid on the fact that the correctness of E.V. Chinnaiah
(supra) has been referred for consideration by a larger Bench in
State of Punjab v. Davinder Singh
25
. It was urged that the
permissibility of sub-classification amongst backward classes as
has been done in the 2021 Act cannot be contested.
Reasonableness of sub-classification is a separate question to
be determined by this Court.
34. On the other hand, Dr. Rajeev Dhawan and Mr. R.
Balasubramanian submitted that backward classes can be subdivided into backward and more backward classes in
accordance with Indra Sawhney (supra), but further
24 1992 Supp (3) SCC 217
25 (2020) 8 SCC 1
32 | P a g e
differentiation of MBCs is not permissible as it would amount to
micro-classification, as correctly held by the High Court.
35. The Andhra Pradesh Scheduled Castes (Rationalisation of
Reservations) Act, 2000 was challenged before the High Court of
Andhra Pradesh. 57 castes enumerated in the Presidential list
of Scheduled Castes were categorised into four groups based on
inter se backwardness and separate quotas were fixed in
reservation for each of these groups by the State of Andhra
Pradesh. A five-Judge Bench of the High Court by a majority of
4:1 dismissed the writ petitions. In E.V. Chinnaiah (supra), the
main contention of the appellants therein before this Court was
that the State lacked legislative competence in enacting the
said legislation which, according to the appellants, was solely
meant for subdividing or subgrouping the castes enumerated in
the Presidential list, as under Article 341(2) bifurcation of the
Presidential list can be done only by the Parliament.
Alternatively, it was submitted that this subgrouping amounted
to micro-classification of the Scheduled Castes, in violation of
Article 14 of the Constitution. Three questions were framed by
this Court in E.V. Chinnaiah (supra), as listed below:
“(1) Whether the impugned Act is violative of Article
341(2) of the Constitution of India?
(2) Whether the impugned enactment is constitutionally
invalid for lack of legislative competence?
33 | P a g e
(3) Whether the impugned enactment creates
subclassification or micro-classification of Scheduled
Castes so as to violate Article 14 of the Constitution of
India?”
36. In E.V. Chinnaiah (supra), this Court was of the opinion
that Article 341 made it clear that the State, either by legislative
or executive action, had no power of “disturbing” the
Presidential list of Scheduled Castes and therefore, any
executive or legislative act of the State which interferes,
disturbs, rearranges, regroups or reclassifies various castes in
the Presidential list is violative of Article 341 and the scheme of
the Constitution. Further, it was held that castes identified by
the President under Article 341 formed a class in themselves
and any division of these classes based on any consideration
would amount to tinkering with the Presidential list. As the
primary object of the impugned enactment in that case was to
create groups of sub-castes in the list of Scheduled Castes, this
Court concluded that the State does not have legislative
competence to divide the Scheduled Castes, by tracing its claim
to Entry 41 of List II and Entry 25 of List III. Insofar as the
contention of sub-classification of Scheduled Castes is
concerned, this Court rejected the contention of the respondents
therein that the ratio of Indra Sawhney (supra) applied to the
facts of E.V. Chinnaiah (supra). It was pointed out that sub34 | P a g e
classification dealt with by Indra Sawhney (supra) related only
to ‘Other Backward Classes’ and not Scheduled Castes as the
judgment in Indra Sawhney (supra) itself had expressly held
that subdivision of ‘Other Backward Classes’ is not applicable to
Scheduled Castes and Scheduled Tribes, the reason for which,
according to this Court in E.V. Chinnaiah (supra), was that the
Constitution itself had kept the Lists of Scheduled Castes and
Scheduled Tribes out of interference by the State Governments.

37. A close scrutiny of E.V. Chinnaiah (supra) would make it
clear that the High Court was wrong in relying upon the said
judgment to hold that sub-classification of backward classes is
beyond the legislative competence of the State. E.V.
Chinnaiah (supra) primarily relates to the power of the State
legislature in categorising the Scheduled Castes identified under
Article 341 into four groups, the effect of which was held to be
modification of the Presidential list, which Article 341 precluded
the States from doing. As was clearly expressed by this Court in
E.V. Chinnaiah (supra), the issue of sub-classification of
backward classes was dealt with in Indra Sawhney (supra) and
it is pertinent for us to refer to the following paragraphs
authored by Jeevan Reddy, J., after referring to observations of
35 | P a g e
Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of
Karnataka
26
:
“802. 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. Let us take the criteria evolved by Mandal
Commission. Any caste, group or class which scored
eleven or more points was treated as a backward class.
Now, it is not as if all the several thousands of
castes/groups/classes scored identical points. There
may be some castes/groups/classes which have scored
points between 20 to 22 and there may be some who
have scored points between eleven and thirteen. It
cannot reasonably be denied that there is no difference
between these two sets of castes/groups/classes. To
give an illustration, take two occupational groups viz.,
goldsmiths and vaddes (traditional stone-cutters in
Andhra Pradesh) both included within Other Backward
Classes. None can deny that goldsmiths are far less
backward than vaddes. If both of them are grouped
together and reservation provided, the inevitable result
would be that goldsmiths would take away all the
reserved posts leaving none for vaddes. In such a
situation, a State may think it advisable to make a
categorisation even among other backward classes so
as to ensure that the more backward among the
backward classes obtain the benefits intended for
them. Where to draw the line and how to effect the sub26 1985 Supp SCC 714
36 | P a g e
classification is, however, a matter for the Commission
and the State — and so long as it is reasonably done,
the Court may not intervene. In this connection,
reference may be made to the categorisation obtaining
in Andhra Pradesh. The Backward Classes have been
divided into four categories. Group A comprises
“Aboriginal tribes, Vimukta jatis, nomadic and seminomadic tribes etc.” Group B comprises professional
group like tappers, weavers, carpenters, ironsmiths,
goldsmiths, kamsalins etc. Group C pertains to
“Scheduled Castes converts to Christianity and their
progeny”, while Group D comprises all other
classes/communities/groups, which are not included in
Groups A, B and C. The 25% vacancies reserved for
backward classes are sub-divided between them in
proportion to their respective population. This
categorisation was justified in Balram [(1972) 1 SCC
660 : (1972) 3 SCR 247] . This is merely to show that
even among backward classes, there can be a subclassification on a reasonable basis.
803. There is another way of looking at this issue.
Article 16(4) recognises only one class viz., “backward
class of citizens”. It does not speak separately of
Scheduled Castes and Scheduled Tribes, as does Article
15(4). Even so, it is beyond controversy that Scheduled
Castes and Scheduled Tribes are also included in the
expression “backward class of citizens” and that
separate reservations can be provided in their favour. It
is a well-accepted phenomenon throughout the country.
What is the logic behind it? It is that if Scheduled Tribes,
Scheduled Castes and Other Backward Classes are
lumped together, OBCs will take away all the vacancies
leaving Scheduled Castes and Scheduled Tribes high
37 | P a g e
and dry. The same logic also warrants categorisation as
between more backward and backward. We do not
mean to say — we may reiterate — that this should be
done. We are only saying that if a State chooses to do
it, it is not impermissible in law.”
Sawant, J. was also of the opinion that sub-classification of
backward and more backward classes would be permissible,
provided that separate quotas are provided for each of them. It
is crystal clear from the judgment of Indra Sawhney (supra)
that backward classes can be sub-classified. Whether the subclassification under the 2021 Act is reasonable will be addressed
subsequently but no doubt can be entertained about the
permissibility of sub-classification amongst backward classes.
38. By drawing strength from E.V. Chinnaiah (supra), the
High Court was of the firm view that there cannot be any subdivision of castes including sub-castes, races and tribes
mentioned in the Presidential list. In E.V. Chinnaiah (supra), 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. According to the plural opinion in Dr Jaishri
Laxmanrao Patil (supra), the list of SEBCs with respect to
States was to be notified by the President, after due consultation
with the National Commission for Backward Classes under
38 | P a g e
Article 342-A. Admittedly, this was not done till the time of
enactment of the 2021 Act. As stated earlier, exercising powers
under Article 142 of the Constitution, this Court in Dr Jaishri
Laxmanrao Patil (supra) directed that till the publication of the
list of SEBCs by the President, the SEBC lists prepared by the
States would continue to hold the field. Thus, even on
consideration of the law laid down in E.V. Chinnaiah (supra), it
is clear from the above that a Presidential list for SEBCs did not
come into existence and the question of sub-division of the said
list by way of the 2021 Act does not arise. Therefore, the finding
of the High Court in this regard is erroneous.
C. Bar on Competence under Article 31-B of the
Constitution
39. The constitutionality of the 2021 Act was assessed by the
High Court under Article 31-B of the Constitution. The High
Court observed that a statute placed in the Ninth Schedule shall
continue to be in force, till it is amended or repealed. In the
present set of facts, the High Court was of the view that without
amending the 1994 Act, which provides for undivided 20 per
cent reservation to MBCs and DNCs together, the State lacked
the legislative competence to provide internal reservation to one
community from amongst that group of communities by way of a
separate but similar legislation. Reference was drawn to
39 | P a g e
amendments made by the State of Tamil Nadu to statutes placed
in the Ninth Schedule, which were also included in the Ninth
Schedule.
40. Dr. Singhvi, referring to Section 7 of the 1994 Act,
submitted that the scheme of reservation under the 2021 Act
was not a new scheme over and above the reservation provided
for under the 1994 Act. Section 7 of the 1994 Act expressly
provided for classification and sub-classification of the
‘Backward Classes of citizens’ by the State by notification, for
the purposes of the said statute. It was pointed out by Dr.
Singhvi that the power under Section 7 had been exercised by
the State earlier as well in enacting 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 (hereinafter, the “2007 Act”), whereunder
three and a half per cent reservations were granted to
‘Backward Class Muslims’ from the 30 per cent reserved for
Backward Classes under the 1994 Act and which continues to be
in force till date. Accordingly, Dr. Singhvi contended that the
High Court was incorrect in its treatment of the 2021 Act as a
special statute varying the provisions of the 1994 Act.
40 | P a g e
41. Mr. Dwivedi proffered arguments on a different aspect of
this issue. He submitted that the High Court completely
misunderstood the scope of Article 31-B. While Article 31-B
provided protection to statutes placed within the Ninth Schedule
against challenge in terms of Part III of the Constitution, it
cannot be interpreted to restrict the plenary powers of
legislation under Article 246 and alter the federal distribution of
powers. Additionally, he urged that Article 31-B did not
prescribe any procedure for amendment or repeal of a statute in
the Ninth Schedule and therefore, the High Court’s observation
on amending statutes also being placed in the Ninth Schedule
was only evidence of the procedure adopted with respect to
certain amending statutes and not a requirement of every
amending statute. Assuming that this Court was not inclined to
accept that the 2021 Act was in exercise of Section 7 of the
1994 Act, even then the 2021 Act in its own right is a valid piece
of legislation, without the protection of Article 31-B as the
incurred consequence. To support his submissions, he placed
reliance on judgments of this Court in Sri Ram Ram Narain
Medhi (supra), Chandra Sekhar Singh Bhoi (supra),
Godavari Sugar Mills Ltd. (supra) and UCO Bank v. Dipak
Debbarma
27
.
27 (2017) 2 SCC 585
41 | P a g e
42. Countering these submissions, the Respondents contended
that a statute placed in the Ninth Schedule becomes part of the
Constitution and cannot be amended or added to by the State
Legislature. Mr. Balasubramanian argued that the 2021 Act is in
conflict with the 1994 Act inasmuch as the 1994 Act provides for
composite reservation of 20 per cent for MBCs and DNCs
whereas under the 2021 Act, 10.5 per cent has been delineated
for one community from amongst the communities comprising
MBCs and DNCs.
43. Article 31-B prescribes that no statute placed in the Ninth
Schedule shall be void on the ground that it is inconsistent with,
takes away or abridges any right conferred under Part III of the
Constitution. The statute placed in the Ninth Schedule shall
continue in force, subject to the powers of the competent
Legislature to repeal or amend it. According to this Court in
Godavari Sugar Mills Ltd. (supra), the object of Article 31-B,
which was inserted by the Constitution (First Amendment) Act,
1951, is to give a blanket protection to the acts and regulations
specified in the Ninth Schedule and the provisions of those acts
and regulations against any challenge to those acts, regulations
or the provisions thereof on the ground that they are
inconsistent with or take away or abridge any of the rights
conferred by Part III of the Constitution. The result is that
42 | P a g e
howsoever violative of the fundamental rights may be the
provisions of an act or regulation, once the act or regulation is
specified in the Ninth Schedule it would not be liable to be
struck down on that score. This immunity against the above
challenge would be available notwithstanding any judgment,
decree or order of any court or tribunal to the contrary. 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. It is also plain
from the language of the Article that the specification of an act
or regulation would not prevent the competent legislature to
repeal or amend it. This Court was of the further opinion that:
“16. The protection of Article 31B can also not be
extended to a new provision inserted as a result of
amendment on the ground that it is ancillary or
incidental to the provisions to which protection has
already been afforded by including them in the Ninth
Schedule. Article 31B carves out a protected zone. It
has inserted Ninth Schedule in the Constitution and
gives immunity to the Acts, Regulations and provisions
specified in the said schedule from being struck down
on the ground of infringement of Fundamental Rights
even though they are violative of such rights. Article
31B thus excludes the operation of Fundamental Rights
in matters dealt with by those Acts, Regulations and
provisions. Any provision which has the effect of making
an inroad into the guarantee of Fundamental Rights in
the very nature of things should be construed very
43 | P a g e
strictly, and it would not, in our opinion, be permissible
to widen the scope of such a provision or to extend the
frontiers of the protected zone beyond what is
warranted by the language of the provision. No Act,
Regulation or provision would enjoy immunity and
protection of Article 31B unless it is expressly made a
part of the Ninth Schedule. The entitlement to
protection being confined only to the Acts, Regulations
and provisions mentioned in the Ninth Schedule, it
cannot be extended to provisions which were not
included in that schedule. This principle would hold
good irrespective of the fact whether the provision to
which entitlement to protection is sought to be
extended deals with new substantive matters or
whether it deals with matters which are incidental or
ancillary to those already protected.”
While dealing with the findings of the High Court in the
impugned judgment therein, made on the basis of an earlier
decision of this Court in Ramanlal Gulab Chand Shah (supra),
this Court in Godavari Sugar Mills (supra) observed that a
legislation, which is incidental or ancillary to a statute protected
under Article 31-B, can be assailed on the ground of
inconsistency with Part III of the Constitution.
44. In our view, the 2021 Act cannot be said to be suffering
from the vice of lack of legislative competence, merely because
it deals with matters associated with or ancillary to the 1994 Act.
Classification of backward classes has been made by the 1994
Act, which was placed under the Ninth Schedule. It is clear from
44 | P a g e
the judgments referred to above that the State has the power to
amend or repeal a statute which has been placed under the
Ninth Schedule. It is settled law that any amendment made to a
statute placed under the Ninth Schedule does not get protection
under Article 31-B, unless the said amendment is also included
in the Ninth Schedule. Having scrutinised the above judgments
on the objective of Article 31-B, we are unable to see how Article
31-B operates as a hurdle for the State to enact statutes on
matters ancillary to the 1994 Act. Article 31-B does not place
any fetter on the power of the State to legislate on such matters
nor does it prescribe any mandatory requirement for such
legislations to be included within the Ninth Schedule, as has
been understood by the High Court. The consequence of the
2021 Act not being placed in the Ninth Schedule is that it can be
assailed as being violative of the fundamental rights enshrined
under Part III of the Constitution, which the Appellants have
fairly admitted. It is worthwhile for us to reiterate the
authoritative pronouncement of a five-Judge Bench of this Court
in Maharaj Umeg Singh v. State of Bombay
28
, relevant
portion of which is reproduced below:
“13. … The legislative competence of the State
Legislature can only be circumscribed by express
prohibition contained in the Constitution itself and
28 (1955) 2 SCR 164
45 | P a g e
unless and until there is any provision in the
Constitution expressly prohibiting legislation on the
subject either absolutely or conditionally, there is no
fetter or limitation on the plenary powers which the
State Legislature enjoys to legislate on the topics
enumerated in the Lists 2 and 3 of the Seventh
Schedule to the Constitution. It was conceded on behalf
of the petitioners that the topic of legislation which was
covered by the impugned Act was well within List 2 of
the said schedule and the vires of the impugned Act
could not be challenged on that ground…”
 As no express prohibition stems from Article 31-B on the
powers of the State Legislature to legislate on matters
incidental to statutes placed within the Ninth Schedule, we are
not in agreement with the finding of the High Court that the
State Legislature lacked legislative competence to enact the
2021 Act on account of Article 31-B.
45. The 2021 Act determined the extent of reservation for
communities which had already been identified and categorised
by the 1994 Act. Assuming that the State Legislature carried out
an amendment to the 1994 Act, the said amendment would not
have received the protection under Article 31-B. The question
that remains to be answered is whether the determination of
internal reservation for already identified communities by a
separate legislation can be said to be in conflict with the 1994
Act. This Court is of the considered view that detailing the
46 | P a g e
extent of reservation for communities which have already been
identified as MBCs and DNCs cannot be said to be contrary to
the 1994 Act. The preamble of the 1994 Act states that in view
of requests from various political parties and social forums
representing backward classes to consider the ramifications of
the judgment of this Court in Indra Sawhney, the State
Government had decided that the existing level of 69 per cent
reservation in admission to educational institutions in the State
and services under the State shall be continued. Determination
of extent of reservation for specific communities within the
‘Backward Classes of citizens’ was not the subject matter of the
1994 Act.

46. The conclusion of the High Court that determining the
extent of reservation amongst the ‘Backward Classes of citizens’
can be done only by amending the 1994 Act in view of Article
31-B is unsustainable. It is made clear that it was open to the
State to have amended the 1994 Act. At the same time, it
cannot be said that the State Legislature lacked competence to
enact a legislation for determining the extent of reservation
amongst the MBCs and DNCs.
D. Effect of the 1994 Act receiving Presidential Assent
under Article 31-C of the Constitution
47 | P a g e
47. As the 1994 Act received the assent of the President of
India, the High Court was of the opinion that the same cannot be
varied by the State Government. It was contended on behalf of
the Appellants that the High Court was completely wrong in
holding that the State does not have the competence to enact
the 2021 Act on the ground that it has not received the assent of
the President of India. It was pointed out by Mr. Dwivedi that the
1994 Act had received assent of the President under Article 31-C
as it was enacted for giving effect to the policy of the State
towards securing principles laid down in Part IV of the
Constitution, in particular, under Article 38, clauses (b) and (c) of
Article 39 and Article 46. The 1994 Act contained an express
declaration to this effect in Section 2 thereof. He argued that
the State is at liberty to decide whether a statute should receive
the protection of Article 31-C. Mr. Singhvi submitted that as the
impugned legislation is pursuant to the mandate of Section 7 of
the 1994 Act, which had received the assent of the President, it
is not necessary for the State to have reserved the 2021 Act for
consideration of the President, by relying upon judgments of this
Court in Arnold Rodricks v. State of Maharashtra
29 and
Rajiv Sarin v. State of Uttarakhand
30
.
29 (1966) 3 SCR 885
30 (2011) 8 SCC 708
48 | P a g e
48. Mr. Vaidyanathan relied upon a judgment of this Court in
State of Kerala v. Peoples Union for Civil Liberties
31 as
well as judgments of the High Court of Bombay in Dattatray
Yedu Thombre v. State of Maharashtra
32
 and Citizens of
Deulgaon Raja v. State of Maharashtra
33
 and a judgment of
the High Court of Madhya Pradesh in Rasal Singh v. State of
M.P.
34
 to submit that assent of the President is not required for
enacting a statute with respect to a matter which is within the
purview of List II of Seventh Schedule of the Constitution and
further, that amendment to a statute, which had received the
assent of the President, can be carried out with the assent of the
Governor, as long as provisions of the amending statute do not
fall within the mischief of Article 254. Mr. Vaidyanathan
contended that assent of the President had not been sought
while granting separate reservation provided to the ‘Backward
Class Muslims’ under the 2007 Act and to the Arunthathiyars,
within the 18 per cent reserved for Scheduled Castes, under the
Tamil Nadu Arunthathiyars (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 Scheduled Castes) Act, 2009.
31 (2009) 8 SCC 46
32 2019 SCC Online Bom 4408
33 2002 SCC Online Bom 735
34 1978 SCC Online MP 12
49 | P a g e
49. Laws giving effect to the policy of the State towards
securing principles laid down in clauses (b) and (c) of Article 39
of the Constitution are saved from challenge as being
inconsistent with Articles 14 and 19 of the Constitution, as per
Article 31-C. Where such law is made by the State Legislature, it
shall not receive the benefit under Article 31-C unless it receives
the assent of the President. The 1994 Act received the assent of
the President as it was made for securing the Directive Principles
under Article 38, clauses (b) and (c) of Article 39 and Article 46.
The High Court proceeded to hold that the 2021 Act has varied
the provisions of the 1994 Act, which could not have been done
by the Governor.
50. As already stated, the 2021 Act deals with matters which
are incidental or ancillary to those contained in the 1994 Act
and the State is competent to legislate on such matters. It is for
the State to decide whether a legislation, which is not
repugnant to any law made by the Parliament on the same
subject matter, should receive the assent of the President or
not. If the assent of the President is not sought, the
consequence is that the statute made by the State is
susceptible to challenge as being violative of Article 14 or
Article 19. However, it cannot be said that the State cannot
legislate on subject matters, ancillary to that of an earlier
50 | P a g e
statute which has received the assent of the President, or that it
is mandatory for the State Government to seek the assent of
the President for a legislation which the State is otherwise
competent to enact. In Indra Sawhney (supra), Jeevan Reddy,
J., writing for himself and three other judges, conclusively
clarified that Article 16(1) is a facet of Article 14 and just as
Article 14 permits reasonable classification, so does Article
16(1), which means that appointment and / or posts can be
reserved in favour of a class under clause (1) of Article 16. For
assuring equality of opportunity, it may well be necessary in
certain situations to treat unequally situated persons unequally.
It was further noted that Article 16(4) is an instance of such
classification, put in to place the matter beyond controversy.
Where the State finds it necessary – for the purpose of giving
full effect to the provision of reservation to provide certain
exemptions, concessions or preferences to members of
backward classes, it can extend the same under clause (4) itself.
Pandian, J. while tracing the legislative history of Article 15(4),
observed that the object of Article 15(4), introduced by the
Constitution (First Amendment) Act, 1951, was to bring Articles
15 and 29 in line with Articles 16(4), 46 and 340 and to make it
constitutionally valid for the State to reserve seats for backward
class of citizens, Scheduled Castes and Scheduled Tribes in
51 | P a g e
public educational institutions as well as to make other special
provisions as may be necessary for their advancement. 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). We see no force in the submissions of
Mr. Vijayan, who attempted to convince this Court that the State
Legislature’s source of power for enacting the 2021 Act cannot
be traced to any Entry in the Lists under the Seventh Schedule
of the Constitution.
51. As referenced while dealing with the competence of the
State to enact the 2021 Act vis-à-vis Article 31-B, this Court in
Maharaj Umeg Singh (supra) has unequivocally clarified that
no fetter can be implied on the power of the State to legislate,
unless it is expressly prohibited under the Constitution. Without
any such express bar under Article 31-C, the State’s
competence to enact the 2021 Act with the Governor’s assent
cannot be faulted with nor can the State be compelled by the
courts to reserve the 2021 Act for assent of the President. In
view of our conclusion, we do not deem it necessary to deal
with the judgments relied upon by the Appellants.
IV. Caste-based classification
52. Internal reservation of 10.5 per cent for the Vanniakula
Kshatriyas was challenged by the writ petitioners before the
52 | P a g e
High Court as being violative of Articles 14, 15 and 16 of the
Constitution. Their contention, that internal reservation was
only on the basis of caste which amounted to discrimination to
the other communities, was accepted by the High Court.
53. The point that arises for our consideration is whether the
internal reservation of 10.5 per cent provided for the Vanniakula
Kshatriyas is on the basis of caste alone and whether the High
Court is right in holding that such classification on the basis of
caste is impermissible. This Court in K.C. Vasanth Kumar
(supra) defined and described caste as below:
“What then is a caste? Though caste has been
discussed by scholars and jurists, no precise definition
of the expression has emerged. A caste is a horizontal
segmental division of society spread over a district or a
region or the whole State and also sometimes outside
it. Homo Hierarchicus is expected to be the central and
substantive element of the caste-system which
differentiates it from other social systems. The concept
of purity and impurity conceptualises the caste system
…. There are four essential features of the caste-system
which maintained its homo hierarchicus character: (1)
hierarchy; (2) commensality; (3) restrictions on
marriage; and (4) hereditary occupation. Most of the
castes are endogamous groups. Inter-marriage between
two groups is impermissible. But ‘Pratilom’ marriages
are not wholly known.”
53 | P a g e
In Indra Sawhney (supra), Jeevan Reddy, J. observed that caste
is nothing but a social class — a socially homogeneous class.
Jeevan Reddy, J. then proceeded to answer the question relating
to identification of backward classes. He was of the considered
view that there is no recognised method for identification of
backward classes. He held that caste can be the starting point
for identifying backward classes, and wherever they are found,
the criteria evolved for determining backwardness can be
applied to see whether they satisfy the criteria.
54. It is clear from the above that caste can be the basis for
providing reservation, but it cannot be the sole basis. At present
we are concerned with sub-classification. As stated, it has been
held in Indra Sawhney (supra) that there is no constitutional or
legal bar to a State categorising backward classes as backward
and more backward. In the present case, sub-classification for
providing internal reservation to a particular community, i.e., the
Vanniakula Kshatriyas, will also be governed by the same
principle, namely, while caste can be the starting point for
providing internal reservation, it is incumbent on the State
Government to justify the reasonableness of the subclassification and demonstrate that caste has not been the only
basis. We are not at present dealing with the inquiry of other
factors relied on by the State Government to justify internal
54 | P a g e
reservation for the Vanniakula Kshatriyas. We propose to deal
with that point subsequently. At present, we have answered the
question relating to caste being the starting basis for providing
reservation and for sub-classification of backward classes so as
to provide for internal reservation.
V. Scrutiny of the report of Thanikachalam, J. and
constitutional validity of the 2021 Act
55. According to the High Court, there was no quantifiable data
available with the State of Tamil Nadu as on the date of
enactment of the 2021 Act, which would support their exercise
of enabling powers under Articles 15(4) and 16(4) of the
Constitution. The High Court was of the view that subclassification of MBCs and DNCs into three categories for
apportionment of reservation under the 2021 Act has been done
without any objective criteria and aside from the population
figures of 1983, no data was available on (i) the degree of
backwardness of the classes for sub-classification; (ii)
inadequate representation of these sub-classes; and (iii)
efficiency of the administration. Additionally, the High Court has
relied on the judgments of this Court in Indra Sawhney (supra),
Jarnail Singh v. Lachhmi Narain Gupta
35
 and Dr Jaishri
Laxmanrao Patil (supra) to hold that the 2021 Act, being an
attempt to provide proportionate representation, is against the
35 (2018) 10 SCC 396
55 | P a g e
law laid down by this Court, as it is settled law that adequate
representation is not proportionate representation. 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.
56. Mr. Rao, Mr. Vaidyanathan and Mr. Wilson relied on the
reports of the Sattanathan Commission and the Ambasankar
Commission to show that the condition of the Vanniakula
Kshatriyas, in terms of their presence and numbers across Tamil
Nadu, their typical occupations and their social and educational
status had been assessed meticulously. Emphasis was laid on
the manner in which the Ambasankar Commission had
conducted their assessment, wherein socio, educational and
economic survey of the entire populace of Tamil Nadu was
undertaken by employing 2500 personnel and going door-todoor to collect particulars of around five crore people over a
period of two years, with a view to find out and identify
56 | P a g e
backward classes entitled to enjoy the reservation benefits for
admission into educational institutions and professional colleges
and for appointments or posts in the services under the State. It
was further submitted that the report of the Janarthanam
Commission was based on the Ambasankar Commission Report,
which had collected extensive quantifiable data. The
Janarthanam Commission had undertaken a feasibility analysis
of castes and communities demanding internal reservation and
applied a formula for finding out the feasibility factor of each
such community. Only after concluding that none of the other
castes / communities, demanding internal reservation within the
20 per cent reservation granted to MBCs and DNCs, satisfied the
test of viability or feasibility for internal reservation, the
Janarthanam Commission had recommended 10.5 per cent
internal reservation for the Vanniakula Kshatriyas. The
Appellants also pointed out that the Janarthanam Commission
had studied the representation of Vanniakula Kshatriyas in
professional courses for academic years 2006-07 to 2010-11 and
in Tamil Nadu Government Services as on 01.08.2010 to
demonstrate their inadequate share of enjoyment of reservation
benefits, which was far below the proportion of their population
to the total population. Accordingly, it was urged by the
Appellants that the impugned judgment of the High Court had
57 | P a g e
not applied its mind to the reports and the extensive findings on
the basis of the data collected and evaluated. Contesting the
impugned judgment, it was further argued by Mr. Radhakrishnan
that the High Court had not embarked on a limited scrutiny, as is
the mandate of this Court in Barium Chemicals Ltd. v.
Company Law Board
36
 for instances where the subjective
opinion of the State is involved, and that the High Court should
have restricted itself to examine whether there was data
available on the basis of which the State Government had
formed its opinion. These submissions were forcefully
controverted by the Respondents, on grounds discussed
hereinafter.
57. The preamble of the 2021 Act refers to the
recommendation of the Chairman, Tamil Nadu Backward Classes
Commission for providing 10.5 per cent reservation to the
Vanniakula Kshatriya community within 20 per cent. The
Chairman of the Commission sought support from the
recommendations made by the Janarthanam Commission to
recommend internal reservation in favour of the Vanniakula
Kshatriyas. To appreciate the submissions on whether the
findings of the various Reports are supported by data, it is
necessary to deal with the recommendations of the Tamil Nadu
36 1966 Supp SCR 311
58 | P a g e
Backward Classes Commission, headed by Justice Janarthanam
and the letter of Justice Thanikachalam. Given that the
Sattanathan Commission and the Ambasankar Commission were
not requested to address the issue of provision of internal
reservation to specific communities within the MBCs and DNCs,
the reports of these Commissions are not relevant for our
discussion.
58. Before we commence our evaluation of the reports of the
Janarthanam Commission and of Justice Thanikachalam, it is
necessary to briefly outline the contours of judicial review of a
Commission’s report providing recommendations pertaining to
backward classes. As identification of backward classes and
grant of reservation are measures under Articles 15(4) and 16(4)
of the Constitution, such measures have to pass constitutional
scrutiny. While the report of a Commission has to be looked into
with deference, it cannot be said that evaluation pertaining to
violation of any constitutional principle or non-consideration of
any constitutional requirement is beyond the reach of judicial
oversight. This Court in State of A.P. v. U.S.V. Balram37
categorially laid down that judicial scrutiny is permissible to
enquire into whether the conclusions arrived at by the
Commission are supported by the data and materials referred to
37 (1972) 1 SCC 660
59 | P a g e
in its report. In Indra Sawhney (supra), the test laid down in
Barium Chemicals (supra) was endorsed with respect to
judicial review of the subjective opinion of the State in matters
relating to reservation. Subsequently, this Court has cautioned
against the re-evaluation of the factual material on record38
.
Having considered the above judgments, we say with certainty
that it is within the domain of the courts to scrutinise the factual
material and data collected by a Commission and assess
whether the conclusions of the Commission are justified by such
material.
59. By G.O. (Ms) No. 35 dated 21.03.2012, the Government of
Tamil Nadu requested the Tamil Nadu Backward Classes
Commission to submit a report on the demands made by various
communities for internal reservation within the reservation
provided for MBCs and DNCs, apart from other terms of
reference prescribed. The Backward Classes Commission
consisted of 7 members, with Justice Janarthanam chairing the
Commission. The other members of the Commission, except the
Chairman, expressed their concern that adequate time was not
given to them to deliberate on an important issue relating to
internal reservation. It was pointed out by the majority in their
report that as on 2011-12, updated caste-based statistics were
38 B.K. Pavitra v. Union of India (2019) 16 SCC 129
60 | P a g e
not furnished to them. The majority members observed that
their term was coming to an end in July, 2012 and it would not
be proper for them to submit a report, especially when the
parliamentary elections were anticipated. A suggestion was
made by the members to provide an interim reply to the
Government requesting that updated caste-based census data
should be collected and placed before the Commission. Prof D.
Sundaram, a member of the Commission, submitted a separate
note, in which, along with other recommendations, he stated
that there was a need for assessment of quantifiable data by a
statistical expert, which should be collated in the current survey
on castes. He further suggested a wider consultation with vicechancellors of universities, directors of institutes, chairmen and
members of various recruitment commissions and agencies both
at the Centre and State level and all stakeholders of the
communities and classes, bureaucrats in various departments,
more particularly of the personnel and administrative reforms
departments. He also emphasised that the representations
preferred by other communities from amongst the Backward
Classes for internal reservation need to be examined.
60. The Chairman of the Backward Classes Commission
submitted his report on 24.05.2012, recommending internal
reservation of 10.5 per cent in favour of Vanniakula Kshatriyas.
61 | P a g e
In his report, there is a reference to 50 representations received
by the Commission from various castes / communities seeking
internal reservation in educational institutions as well as
appointments to public posts. 30 representations were made by
communities within the MBCs, out of which, 8 were from
Vanniakula Kshatriyas, 5 from Meenavars, 1 each from Thotiya
Naicker, Maruthuvar, Navithar, Salavai Thozhilalar and Erra
Gollar, seeking internal reservation on the basis of individual
castes / communities. The Commission gathered the population
data of all castes and communities listed as MBCs and DNCs
from the Ambasankar Commission Report submitted to the
Government in 1985 and other material furnished by the
Government to consider the feasibility of the requests for
internal reservation. It was mentioned in the report that the
total population from the State of Tamil Nadu representing all
castes and communities during 1983 was 4,99,90,943. The
population of the MBCs and DNCs was 1,23,17,745. The
population of the Vanniakula Kshatriyas was 65,04,855, which
came up to 13.012 per cent of the total population. The
Chairman of the Commission worked out the percentage of
internal reservation from the population figures, which formed
the basis of the feasibility analysis conducted. On the basis of a
formula that was adopted by the Chairman, the feasibility factor
62 | P a g e
of the Vanniakula Kshatriyas was 10.562 per cent. The other
communities / castes seeking internal representation were found
to be not entitled for the benefit as they did not satisfy the test
of feasibility for making internal reservation, falling about or
below two and a half per cent on the basis of their population
proportionate to the population of MBCs and DNCs together. The
report further stated that preparation of roster for working out
reservation would become complicated, if representations by
other communities asking for internal reservation were to be
accepted.
61. By taking into account the population of the Vanniakula
Kshatriyas as enumerated in the report of the Ambasankar
Commission in 1985, the Chairman recommended internal
reservation to the Vanniakula Kshatriyas in proportion to their
population, i.e., 10.5 per cent. The Chairman further referred to
the admissions of students belonging to the Vanniakula
Kshatriya community in professional courses such as
engineering, medicine, veterinary science, agriculture and law
for the academic years 2006-07 to 2010-11 and found that the
seats secured to engineering courses was not proportionate to
their population. Insofar as public employment is concerned,
representation of Vanniakula Kshatriyas in the State services
averaged across Group-A, Group-B, Group-C and Group-D, as on
63 | P a g e
01.08.2010, was 8.67 per cent, which was also below 10.5 per
cent, i.e., the percentage of internal reservation earmarked by
the Chairman. The Chairman was of the view that providing
internal reservation to the Vanniakula Kshatriyas would not
amount to conferring undue advantage on them nor would it
unduly affect the entitlement of reservation benefits of the other
castes and communities listed as MBCs and DNCs.
62. As stated, the Tamil Nadu Backward Classes Commission
was re-constituted on 08.07.2020, with Justice Thanikachalam as
the Chairman, along with six members and two ex-officio
members. In response to the Government’s request on
18.02.2021 to send views on internal reservation to be provided
for communities listed in MBCs and DNCs, Justice
Thanikachalam, by way of letter dated 22.02.2021,
recommended 10.5 per cent reservation for Vanniakula
Kshatriyas, seven per cent for DNCs and some MBCs and two
and a half per cent for the remaining MBCs. In the said letter, a
reference was made to the recommendation of Justice
Janarthanam for grant of 10.5 per cent internal reservation to
Vanniakula Kshatriyas. Without providing any reasons, Justice
Thanikachalam made adverse comments on the dissent of the
other members by stating that such opinion was based on
extraneous reasons, which were irrelevant and not germane to
64 | P a g e
the consideration of issues under the additional terms of
reference issued in 2012. Justice Thanikachalam was of the view
that the recommendation of Justice Janarthanam, though being
the minority opinion, was unassailable. However, noting that
the terms of reference of the Janarthanam Commission required
the Commission to consider representation for internal
reservation of various communities and not just major
communities, Justice Thanikachalam recommended, in addition
to the 10.5 per cent reservation for the Vannikula Kshatriyas,
allocating seven per cent reservation to a grouping of
communities, comprising DNCs along with certain communities
within MBCs bearing names similar to DNCs and fishermen
communities and Vannar communities within MBCs, and
allocating two and a half per cent to the remaining communities
within MBCs. It is worthwhile to reiterate that at the time, no
report had been submitted by the Kulasekaran Commission,
which was appointed by the Government on 21.12.2020 for
collection of quantifiable data on castes, communities and tribes
in the State of Tamil Nadu “as on date”.
63. As contested by Mr. Nagamuthu and Mr. Balasubramanian,
it is clear that the report of Justice Janarthanam, relied upon by
Justice Thanikachalam, is a minority view. The views of the
plurality, i.e., the remaining six members of the Tamil Nadu
65 | P a g e
Backward Classes Commission were contrary to the views
expressed by Justice Janarthanam. The majority opinion clearly
mentioned that the data that was available before them was
outdated. They highlighted the importance of collection of
caste-wise data to enable them to give an opinion on internal
reservation. That apart, the majority members expressed the
inappropriateness of submitting the report in haste, just before
the ensuing parliamentary elections in 2012. Justice
Thanikachalam committed an error in brushing aside the opinion
of the majority members on the ground that it was riddled with
extraneous reasons. Without justifying the lack of updated data
cited by the majority as a ground for being unable to comment
on grant of internal reservation, Justice Thanikachalam blindly
followed the recommendation of Justice Janarthanam, by stating
that his view is unassailable. It is to be noted that the
recommendation of internal reservation for the Vannikula
Kshatriyas is by way of a letter signed only by Justice
Thanikachalam and does not enclose the views of the remaining
members of the Tamil Nadu Backward Classes Commission.
There is nothing in the said letter to even suggest that Justice
Thanikachalam, after due deliberation with the remaining
members of the Commission, has put forth recommendations on
66 | P a g e
internal reservation, which have the backing of the remaining
members, or at the least, the approval of the majority.
64. 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 following paragraph from Dr Jaishri Laxmanrao Patil
(supra), as relied upon by Mr. V. Prakash, is relevant to the
present context:
“520. The word “adequate” is a relative term used in relation
to representation of different caste and communities in public
employment. The objective of Article 16(4) is that backward
class should also be put in mainstream and they are to be
enabled to share power of the State by affirmative action. To
be part of public service, as accepted by the society of today,
is to attain social status and play a role in governance. The
67 | P a g e
governance of the State is through service personnel who
play a key role in implementing government policies, its
obligation and duties. The State for exercising its enabling
power to grant reservation under Article 16(4) has to identify
inadequacy in representation of backward class who is not
adequately represented. For finding out adequate
representation, the representation of backward class has to
be contrasted with representation of other classes including
forward classes. It is a relative term made in reference to
representation of backward class, other caste and
communities in public services.”
There was no independent evaluation by resorting to known
methods for recommending internal reservation by Justice
Thanikachalam, who simply approved the minority report
submitted by Justice Janarthanam.
65. It is relevant to note that Justice Janarthanam in his report
relied upon the population figures of the Vanniakula Kshatriyas
from the year 1985. His recommendation was on the basis of
the figures taken from the report of the Ambasankar
Commission, submitted in 1985. Reference made to admissions
to engineering colleges and appointment to public posts
pertained to the years 2006-07 to 2010-11 and 2010,
respectively. A decision taken for providing reservation which
would impact the rights of members of as many as 115
communities should be on the basis of contemporaneous inputs
and not outdated and antiquated data39. Any study by the
39 Ram Singh v. Union of India (2015) 4 SCC 497
68 | P a g e
Commission should be with regard to the present status since
the object is to take affirmative actions in present or in future to
address the needs of a particular community40. In this particular
case, the data that was relied on for the purpose of
recommending internal reservation to the Vanniakula
Kshatariyas is from 1985. The State Government, at the time of
appointing the Kulasekaran Commission to collect quantifiable
data on castes, communities and tribes in the State of Tamil
Nadu, including migrants domiciled therein, expressly
recognized the need for collection of such data as the data
collected by the Ambasankar Commission had become more
than three decades old. We are in agreement with the objection
of the Respondents, that there was no contemporaneous data
available to Justice Thanikachalam or even Justice Janarthanam,
on the basis of which recommendations for internal reservation
could have been made.
66. It is observed that the proportion of the population of the
Vanniakula Kshatriyas to the total population of MBCs and DNCs,
termed as the feasibility formula, was the sole criterion which
was considered by Justice Janarthanam to recommend internal
reservation for the Vanniakula Kshatriyas. The representations
made by other communities within the MBCs seeking internal
40 Dr Jaishri Laxmanrao Patil (supra)
69 | P a g e
reservation were not considered feasible by Justice Janarthanam
on the sole basis of the proportion of their population to the
total population of the MBCs and DNCs together. 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. Adequacy of representation is different from
proportionate representation, although proportion of population
of the relevant community to the total population may be one of
the relevant factors in determining adequacy. In Indra
Sawhney, it was held as under: -
“807. 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
70 | P a g e
fair manner and within reasonable 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. From this point of view, the 27%
reservation provided by the impugned Memorandums in
favour of backward classes is well within the reasonable
limits. Together with reservation in favour of Scheduled
Castes and Scheduled Tribes, it comes to a total of
49.5%. In this connection, reference may be had to the
Full Bench decision of the Andhra Pradesh High Court in
V. Narayana Rao v. State of A.P. [AIR 1987 AP 53 : 1987
Lab IC 152 : (1986) 2 Andh LT 258] , striking down the
enhancement of reservation from 25% to 44% for OBCs.
The said enhancement had the effect of taking the total
reservation under Article 16(4) to 65%.”
Accordingly, we accept the contention of Dr. Dhawan that the
internal reservation recommended in the report of Justice
Janarthanam and approved by Justice Thanikachalam, based
only on population, cannot be sustained in view of the law laid
down by this Court.
67. The data placed by Mr. Gonsalves, on behalf of one of the
Respondents, with reference to the Tamil Nadu Second
Backward Classes Commission (Ambasankar Commission),
appears to indicate that unlike the other 115 communities in the
same class of MBCs and DNCs, many of whom have been bereft
of any benefit of affirmative action, the Vanniakula Kshatriyas
71 | P a g e
had higher representation in public employment and
educational institutions. For the years 1980-1983, 25
communities from 48 communities identified as MBCs and 66
out of 68 communities identified as DNCs did not get admission
into MBBS course. Students belonging to the Vanniyar
community secured 104 seats in medical course, with an
admission to population ratio of 1:62547. 87 students out of
these 104 were admitted on the basis of reservation whereas 17
students were admitted on their own merit. The Respondents
also placed certain data obtained under the Right to Information
Act, 2005 (hereinafter, the “RTI Act”) pertaining to the
academic years 2019-2020 and 2020-2021. While the total
seats available for admission to undergraduate medical course
for the year 2019-2020 in the State of Tamil Nadu were 4,193
with 20 per cent seats reserved for MBCs and DNCs amounting
to 960 seats, students from the Vanniyar community had
secured 515 seats, which is around 57 per cent of the total
seats reserved for MBCs and DNCs. Citing from the Ambasankar
Report, it was submitted that with respect to engineering, law
and veterinary science courses as well, students from the
Vanniyar community fared far better than other communities
within the MBCs and DNCs, many of whom did not get any seats
in these courses for the period from 1980 to 1983.
72 | P a g e
Representation of Vanniyars in public posts in the Government
of Tamil Nadu for the years 1980 to 1983, according to the
Ambasankar Commission Report, was much better in
comparison to persons belonging to the other communities
within the MBCs and DNCs. Particulars provided of staff
members in Anna University for the years 2018 to 2020,
obtained under the RTI Act, appear to paint a picture of better
access and representation of members of the Vanniyar
community over their compatriots belonging to other
communities within MBCs and DNCs. We are informed that 520
MLAs belonging to the Vanniyar caste have been elected to the
Tamil Nadu Legislative Assembly between 1952 to 2021,
averaging to about 35 MLAs in each Assembly and forming 15
per cent of the strength of the House. More than 90 persons
from the Vanniyar caste have been elected to the Lok Sabha in
the same period, which is also about 15 per cent of the total
number of MPs in Lok Sabha from Tamil Nadu. Several
individuals from the Vannikula Kshatriya community have held
posts of Ministers at the Centre as well as in the State
Government and have also been appointed as Judges of the
High Court. We are further informed that numerous trusts have
been established, which cater to the betterment of members,
73 | P a g e
and educational needs of students in particular, from the
Vanniyar community.
68. We have referred to this data only to emphasize that the
findings in the letter of Justice Thanikachalam had to be suitably
supported by independent studies and assessment of relevant
data. 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.
69. Having dealt with the recommendations from Justice
Thanikachalam, which form the basis for the 2021 Act, the
question which requires to be considered next is whether the
2021 Act is unconstitutional, being violative of Article 14 of the
Constitution. The preamble of the 2021 Act refers to the
representation made by the Vanniakula Kshatriyas for a
separate quota of reservation on the ground that they could not
compete with the other communities in the list of MBCs and
DNCs, which was referred to the Backward Classes Commission.
The preamble further refers to the recommendations made by
the Chairman of the Backward Classes Commission (Justice
Thanikachalam), where to facilitate distributive social justice,
apart from the 10.5 per cent reservation for Vanniakula
74 | P a g e
Kshatriyas, the other communities within the MBCs and DNCs
were recommended to be grouped into two categories on the
proportion of their population. Accepting the suggestions made
by the Chairman, Backward Classes Commission, the 2021 Act
was promulgated to ensure equitable distribution of the 20 per
cent reservation provided to the MBCs and DNCs under the
1994 Act.
70. That there is no relevant, contemporaneous material
which was examined by the Chairman, Backward Classes
Commission before submitting his report in support of the claim
of the Vanniakula Kshatriyas, has been dealt with in detail in the
preceding paragraphs. Is the State right in contending that the
classification of the Vanniakula Kshatriyas made by the 2021 Act
for separate reservation is reasonable? The Appellants, relied
on Chiranjit Lal Chowdhuri v. Union of India
41
, to urge that
the presumption is in favour of constitutionality of the 2021 Act
and the burden is upon those who attack the legislation to
demonstrate that constitutional principles had been clearly
transgressed. Further, support was sought from Ajay Kumar
Singh v. State of Bihar
42
 to contend that the State is in the
best position to determine what kind of special provision should
be made in favour of a particular class, having regard to the
41 1950 SCR 869
42 (1994) 4 SCC 401
75 | P a g e
relevant facts and circumstances, and deference must be shown
to legislative judgment. The Respondents contested the above
submissions on the ground that the classification made under
the 2021 Act amounts to discriminating equals. Reliance was
placed on Col. A.S. Iyer v. V. Balasubramanyam43
 to argue
that an anxious and sustained attempt to discover some basis
for classification will deprive Article 14 of the equality
dispensation. In the absence of any rationale for treating the
Vanniakula Kshatriyas differently, the differentiation and
allocation of percentages was entirely arbitrary and falls foul of
Article 14.
71. Equal laws would have to be applied to all in the same
situation, and there should be no discrimination between one
person and another if as regards the subject matter of the
legislation their position is substantially the same. This brings in
the question of classification. As there is no infringement of the
equal protection rule, if the law deals alike with all of a certain
class, the legislature has the undoubted right of classifying
persons and placing those whose conditions are substantially
similar under the same rule of law, while applying different rules
to persons differently situated. The classification should never
be arbitrary, artificial or evasive. It must rest always upon real
and substantial distinction bearing a reasonable and just
43 (1980) 1 SCC 634
76 | P a g e
relation to the thing in respect to which the classification is
made; and classification made without any reasonable basis
should be regarded as invalid44. The whole doctrine of
classification is based on discrimination without reason and
discrimination with reason and on the well-known fact that the
circumstances which govern one set of persons or objects may
not necessarily be the same as those governing another set of
persons or objects so that the question of unequal treatment
does not really arise as between persons governed by different
conditions and different sets of circumstances45
.
72. Discrimination is the essence of classification. Equality is
violated if it rests on unreasonable basis. The concept of
equality has an inherent limitation arising from the very nature
of the constitutional guarantee. Those who are similarly
circumstanced are entitled to an equal treatment. Equality is
amongst equals. Classification is, therefore, to be founded on
substantial differences which distinguish persons grouped
together from those left out of the groups and such differential
attributes must bear a just and rational relation to the object
sought to be achieved. Our Constitution aims at equality of
status and opportunity for all citizens including those who are
socially, economically and educationally backward. Articles
44 State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284
45 Kathi Raning Rawat v. State of Saurashtra 1952 SCR 435
77 | P a g e
15(4) and 16(4) bring out the position of backward classes to
merit equality. Special provisions are made for the
advancement of backward classes and reservation of
appointments and posts for them to secure adequate
representation. These provisions are intended to bring out the
content of equality guaranteed by Articles 14, 15(1) and 16(1).
However, it is to be noted that equality under Articles 15 and 16
could not have a different content from equality under Article
1446. Differentia which is the basis of classification must be
sound and must have reasonable relation to the object of the
legislation. If the object itself is discriminatory, then
explanation that classification is reasonable having rational
relation to the object sought to be achieved is immaterial47
.
73. As stated supra, the object of the 2021 Act is to achieve
equitable distribution of the benefit of 20 per cent reservation
provided to MBCs and DNCs. At the cost of repetition, at the
time of enactment of the 2021 Act, 116 castes were to be found
in the cumulative lists of MBCs and DNCs. Choosing a particular
caste and providing a special reservation of 10.5 per cent out of
the 20 per cent to such caste is discriminatory, in the absence
of any sound differentiation from communities who are similarly
situated and were, therefore, grouped together for the purposes
46 State of Kerala v. N.M Thomas (1976) 2 SCC 310
47 Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682
78 | P a g e
of receiving the benefits of 20 per cent reservation. While the
State Government has the competence to classify the
Vanniakula Kshatriyas or any other community or group of
communities within backward classes as a particular class for
the grant of special measures, there should be a reasonable
basis for categorising such communities into a different section
from the rest of the communities within the MBCs and DNCs, on
grounds which cannot be superficial or illusory.
74. The justification on behalf of the State is that sufficient
material was gathered by the Tamil Nadu Backward Classes
Commission to show that there was inadequate representation,
disproportionate to the population of the Vanniakula Kshatriyas,
thereby culminating in the 2021 Act, which aimed to achieve
equitable distribution of reservation amongst MBCs and DNCs.
A perusal of the discussion in the earlier paragraphs would
disclose that the letter from the Chairman, Backward Classes
Commission is on the basis of antiquated data, without any
assessment of the relative backwardness and representation of
the Vanniakula Kshatriyas and their ability to compete with the
remaining 115 communities within the MBCs and DNCs.
Additionally, recommendations therein are solely based on
population. To differentiate a particular class / category from
others, there should be a substantial distinction which clearly
79 | P a g e
demarcates that class / category. In the instant case, we see no
justification for how the Vanniakula Kshatriyas can be treated as
a different class and meted out preferential treatment, being
one amongst the 116 communities, who have all been
considered on the same footing till the enactment of the 2021
Act and were, therefore, eligible to claim the benefit of
undivided 20 per cent reservation. Population being cited as
the sole factor to support this classification is in the teeth of the
judgments of this Court in Indra Sawhney (supra) and Jarnail
Singh (supra). Accordingly, we hold that the classification
sought to be made under the 2021 Act is unreasonable and,
therefore, 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.
VI. Non-compliance with Article 338-B(9) of the
Constitution
75. Mr. Sankaranarayanan argued that providing internal
reservation is a major policy matter, which should have been
undertaken by the State only with the consultation of the
National Commission for Backward Classes. As, admittedly,
there was no consultation, the 2021 Act is void. Article 338-
B(9) provides that the Union and the State Government shall
consult the Commission on all major policy matters affecting
80 | P a g e
the SEBCs. A proviso was inserted by the 105th Amendment
Act, by which it was specified that clause (9) of Article 338-B
would not be applicable to lists of SEBCs that are prepared and
maintained by the States. However, the 2021 Act was brought
into force prior to the 105th Amendment Act. Having concluded
that the 105th Amendment Act was prospective in its operation,
it necessarily follows that the State was required to have
consulted the Commission on major policy matters prior to the
105th Amendment Act. There cannot be any dispute regarding
internal reservation being provided to a specific community
qualifying as a major policy decision. The point that falls for
consideration is the consequence of non-consultation by the
State Government with the National Commission for Backward
Classes before providing internal reservation. Given the
language of the provision and its interpretation in Dr Jaishri
Laxmanrao Patil (supra), there need not be a detailed
discussion about Article 338-B(9) being mandatory. The
requirement of consultation with an expert constitutional body
is indeed mandatory and it would be fatal to disregard the
provision. However, non-consultation by the State Government
with the National Commission would not take away the
competence of the State Government to enact the 2021 Act.
Legislative competence can only be circumscribed by express
81 | P a g e
prohibition contained in the Constitution itself48 and Article 338-
B(9) does not stop the State from enacting a legislation in
furtherance of a major policy matter but states that the State
Government shall consult the Commission on such matters.
76. The consequence of disregarding a mandatory
consultation provision would normally render the legislation
void as it is in breach of an obligatory requirement to consult an
expert constitutional body. However, we refrain from going into
this issue in view of our earlier conclusion that the 2021 Act
does not withstand scrutiny under Articles 14, 15 and 16 of the
Constitution.
VII. Conclusion
77. To conclude, we hold that there is no bar on the legislative
competence of the State to enact the 2021 Act and on the
different grounds urged with respect to this issue, we are of the
view that:
(i) The 105th Amendment Act being prospective in operation, it
is the 102nd Amendment Act which held the field at the
time of enactment of the 2021 Act.
(ii) As the 2021 Act dealt with sub-classification and
apportionment of certain percentage of reservation for the
purpose of determining the extent of reservation of
48 M.P. Cement Manufacturers' Association v. State of M. P. (2004) 2 SCC 249
82 | P a g e
communities within the MBCs and DNCs, it is a permissible
exercise of power by the State Government under Article
342-A of the Constitution in terms of the judgment of this
Court in Dr Jaishri Laxmanrao Patil (supra). Prior to the
105th Amendment Act, what was prohibited for the State to
carry out under Article 342-A is the identification of SEBCs,
by inclusion or exclusion of communities in the Presidential
list of SEBCs. It is clear that the exercise of identification of
MBCs and DNCs had been completed by the State pursuant
to the 1994 Act.
(iii) There is no bar to the sub-classification amongst backward
classes, which has been expressly approved in Indra
Sawhney (supra). Even considering the judgment in E.V.
Chinnaiah (supra), which dealt with the sub-classification
of Scheduled Castes identified in the Presidential list under
Article 341 and held that any sub-division of Scheduled
Castes by the State would amount to tinkering with the
Presidential list, the State’s competence in the present
case to enact the 2021 Act is not taken away on this
ground as, admittedly, the Presidential list of SEBCs is yet
to be published, making the question of tinkering with such
list redundant.
83 | P a g e
(iv) Placing of the 1994 Act under the Ninth Schedule cannot
operate as a hurdle for the State to enact legislations on
matters ancillary to the 1994 Act. Legislative competence
of the State Legislature can only be circumscribed by
express prohibition contained in the Constitution itself and
Article 31-B does not stipulate any such express prohibition
on the legislative powers of the State.
(v) Detailing the extent of reservation for communities already
identified as MBCs and DNCs, which is the thrust of the
2021 Act, cannot be said to be in conflict with the 1994 Act,
as determination of extent of reservation for various
communities was not the subject matter of the 1994 Act.
(vi) The 1994 Act, having received the assent of the President
under Article 31-C, does not prohibit the State Legislature
from enacting a legislation with the approval of the
Governor on matters ancillary to the 1994 Act, as Article
31-C does not place any fetter on the legislative powers of
the State. The State cannot be compelled to seek the
assent of the President for a legislation granting internal
reservation, when it is empowered to provide reservation
and other special measures for backward classes, by way
of legislation as well as executive orders, under Articles
15(4) and 16(4) of the Constitution.
84 | P a g e
On the issue of caste-based classification, Indra Sawhney
(supra) has, in precise and unambiguous terms, stated that
caste can be the starting point for identifying backward classes,
but it cannot be the sole basis. Accordingly, while caste can be
the starting point for providing internal reservation, it is
incumbent on the State Government to justify the
reasonableness of the decision and demonstrate that caste is
not the sole basis. As regards the letter of Justice
Thanikachalam, Chairman of the Tamil Nadu Backward Classes
Commission, which forms the basis of the 2021 Act, we find that
the Government has committed an error in accepting the
recommendations therein for the following reasons:
(i) Recommendations have been based on the report of the
Chairman of the Janarthanam Commission, which had relied
on antiquated data, and there is a clear lapse on the part of
Justice Thanikachalam in having readily dismissed the
reservations expressed by the majority members of the
Janarthanam Commission, who had observed that in the
absence of updated caste-wise data, recommendations on
internal reservation could not be fruitfully made.
(ii) Apart from approving the report of the Chairman of the
Janarthanam Commission with respect to internal
reservation for the Vanniakula Kshatriyas and making
85 | P a g e
additional recommendations on the grouping of the
remaining communities for specific percentages of
reservation, the letter from Justice Thanikachalam does not
refer to any analysis or assessment of the relative
backwardness and representation of the communities
within the MBCs and DNCs.
(iii) Population has been made the sole basis for recommending
internal reservation for the Vanniakula Kshatriyas, which is
directly in the teeth of the law laid down by this Court.
Finally, on the 2021 Act, we are of the opinion that there is no
substantial basis for classifying the Vanniakula Kshatriyas into
one group to be treated differentially from the remaining 115
communities within the MBCs and DNCs, and therefore, the
2021 Act is in violation of Articles 14, 15 and 16. We uphold the
judgment of the High Court on this aspect. Given our
conclusion on the 2021 Act being ultra vires Articles 14, 15 and
16 of the Constitution, we have refrained from delving into the
issue of non-compliance by the State Government with the
consultation requirement prescribed under clause (9) of Article
338-B at the time of enactment of the 2021 Act.
78. We make it clear that we have not expressed any opinion
on the merits of the writ petition challenging the 1994 Act,
pending consideration before this Court, or, for that matter,
86 | P a g e
challenges to any other legislation which may have been
referred to herein and our findings are strictly confined to the
issues which have come up for our consideration in relation to
the 2021 Act.
79. The Appeals are disposed of accordingly.
 ..............................J.
 [L. NAGESWARA RAO]
 ............................J.
 [B. R. GAVAI]

New Delhi,
March 31, 2022
87 | P a g e

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