PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & ORS.

The Judgment of the Court was delivered by L. NAGESWARA RAO, J. C Leave granted.

1Copy pinpoint1. 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 D 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. I. Background

2Copy pinpoint2. Communal representation in public services existed in the E 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 Dorairajan¹. This Court held F 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. G 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 1 H 1951 SCR 525

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for Scheduled Castes and Scheduled Tribes together and 25 per cent for A Backward Classes. On 30.12.1954, G.O. Ms. 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 31.¹.1957, the State Government made a sub- classification amongst Backward Classes. ‘Most Backward Communities’ B 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.

3Copy pinpoint3. 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 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.

4Copy pinpoint4. Later, the Tamil Nadu Second Backward Classes Commission was appointed by the Government on 13.12.1982. The said Commission F 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 G 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 H

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A 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.

5Copy pinpoint5. On 30.07.1985, the State Government issued G.O. Ms. No. 1564 notifying 201 communities as Backward Classes throughout the B 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 28.³.1989, 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.

6Copy pinpoint6. Act No. 45 of 1994, i.e., the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in E 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 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 F 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 G 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 H

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reserved power to classify or sub-classify, by notification, the ‘Backward A Classes of citizens’ for the purposes of the 1994 Act, on the basis of reports of the Tamil Nadu Backward Classes Commission constituted on 15.³.1993. 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 B DNCs. By the Constitution (Seventy-sixth 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.

7Copy pinpoint7. 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 Karnataka2, after C 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 India³ 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 D 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 E 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 Cabinet, which was satisfied about the justification for continuation of reservation of 69 per cent.

8Copy pinpoint8. Thereafter, Writ Petition No.365 of 2012 was filed under Article F 32 of the Constitution challenging the 1994 Act, which is pending consideration before this Court. On 21.³.2012, 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 G 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 2 (2012) 7 SCC 41 3 (2006) 8 SCC 212 4 (2008) 6 SCC 1 H

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A 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 B 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.

9Copy pinpoint9. The Tamil Nadu Backward Classes Commission was reconstituted by G.O. (MS) No. 52 dated 08.07.2020 and Justice M. C 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 D 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 E was stated in the said G.O. that the Commission was constituted in response to the demands of various political parties and community organizations.

10Copy pinpoint10. A letter was written on 18.02.2021 by the Government to Justice M. Thanikachalam, Chairman of the Tamil Nadu Backward F 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 amongst the MBCs and DNCs based G 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 H

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reservation in appointment or posts in the services under the State were A 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, B 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’.

11Copy pinpoint11. Writ petitions were filed in the High Court of Madras assailing the constitutional validity of the 2021 Act. The High Court framed the C following points for consideration: “(i) Whether the State Legislature has competency to make the impugned Act after 102nd Constitutional Amendment Act, 2018 and before 105th Constitutional Amendment Act, 2021? D (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 E 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 F 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? G (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?”

12Copy pinpoint12. The High Court answered points (i) to (iii) by holding that the State Legislature has no competence to enact the 2021 Act. The High H

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A 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, the 2021 Act was declared ultra vires the provisions of the Constitution. B

13Copy pinpoint13. 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, C Mr. V. Prakash, Mr. Jaideep Gupta and Mr. Colin Gonsalves, learned Senior Counsel appearing for the Respondents. II. Reference to a larger Bench

14Copy pinpoint14. 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.

15Copy pinpoint15. 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 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. F

16Copy pinpoint16. 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 G Dr. Singhvi, this Court would have to decide whether the 105 th 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 H

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the 2021 Act with respect to Section 31-B of the Constitution. He stated A 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.

17Copy pinpoint17. Appearing on behalf of the Respondents, Dr. Rajeev Dhawan B 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 Bombay5 and Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly6. 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.

18Copy pinpoint18. 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 E 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 judgment of this Court in Ebrahim Vazir Mavat v. State of Bombay7, 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 F any substantial question of law arises on the interpretation of a constitutional provision. The request for reference, was therefore, rejected.

19Copy pinpoint19. 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 G Constitution, the determination of which was necessary for the disposal of the case. This Court was of the opinion that the existence of substantial 5

(1960) 1 SCR 285

6 (2020) 2 SCC 595 7 1954 SCR 933 H

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A 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.

20Copy pinpoint20. Article 145(3) of the Constitution provides that any case involving substantial question of law as to the interpretation of the B 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 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 C 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 D retrospectivity of the said amendment.

21Copy pinpoint21. 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 E 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 Godavari Sugar Mills Ltd. v. S. B. Kamble8, Shri Ram Ram Narain Medhi v. State of Bombay9, Sajjan Singh v. State of Rajasthan10, Ramanlal Gulab Chand Shah v. State of Gujarat11, State of Orissa v. Chandrasekhar Singh Bhoi12 and G State of Maharashtra v. Madhavrao Damodar Patil 13. In view of the 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 H 13

(1968) 3 SCR 712

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 61 ORS. [L. NAGESWARA RAO, J.]

above judgments, which are discussed later, it is not necessary for this A 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 B Fifth Amendment) Act, 2021

22Copy pinpoint22. 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, C 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 by the Ministry of Social Justice and Empowerment, are as below: Article 338-B. National Commission for Backward Classes.- D (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 E 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.- F

(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 H

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A 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 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.

23Copy pinpoint23. The High Court observed that the majority opinion of this Court in Dr Jaishri Laxmanrao Patil v. Chief Minister14 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 F 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, 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). G

24Copy pinpoint24. 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 H 14 (2021) 8 SCC 1

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instead sought to be done by the 2021 Act is sub-classification of the A 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 B 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, C was always the intention behind these provisions, i.e., 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 D as some of the debates and speeches in both houses of the Parliament on the Constitution (One Hundredth and Twenty-seventh 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 E 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 F Prithvi Cotton Mills Ltd. v. Broach Borough Municipality16 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 which gave rise to the Court’s interpretation of the former and would, thus, be retrospective.

25Copy pinpoint25. In the alternative, Mr. Dwivedi argued that the judgment of G this Court in Dr Jaishri Laxmanrao Patil (supra) only excluded the specification of SEBCs by the States under the 102nd Amendment Act.

15 (1994) 5 SCC 593 16 (1969) 2 SCC 283 H

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A 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.

26Copy pinpoint26. The contention put forth on behalf of the Respondents by Mr. B 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 C 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. Wherever it had been the intention of the D 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.

27Copy pinpoint27. Countering the submission made on behalf of the Appellants as to the 105th Amendment Act being clarificatory in 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 H

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 65 ORS. [L. NAGESWARA RAO, J.]

Sabha Chhindwara v. Central Provinces Syndicate Ltd. 17 and a 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 B 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 102 nd Amendment Act and therefore, the 2021 Act is an impermissible exercise on the part of the State Legislature. He was C 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, M.P.V. Sundararamier & Co. v. State of A.P.20 and Deep Chand v. State of Uttar Pradesh21. Dr. Dhawan, joining Mr. Sankaranarayanan D 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 E judgment, but could not be both.

28Copy pinpoint28. 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 F 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 G

17 (1970) 1 SCC 509 18 514 U.S. 211 (1995) 19

(1955) 1 SCR 707

20 1958 SCR 1422 21 1959 Supp (2) SCR 8 H

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A of a statute are ambiguous, the first 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 B 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).

29Copy pinpoint29. 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 D 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 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

22 H (1964) 2 SCR 608

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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 recognising certain communities as SEBCs. Thus, we see no force in the submission of the Appellants that the 105 th 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.

30Copy pinpoint30. 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 C 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 D 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 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. G

31Copy pinpoint31. 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 H

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A 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 2021 Act, as this exercise had already been completed pursuant to the 1994 Act. Under the B 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 C (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 D holding that the 2021 Act is violative of Article 342-A. B. Permissibility of sub-classification amongst backward classes

32Copy pinpoint32. Placing reliance on the judgment of this Court in E.V. E 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 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 F would be ‘deemed to be’ one class of persons.

33Copy pinpoint33. 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 G 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

23 (2005) 1 SCC 394 24 H 1992 Supp (3) SCC 217

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 69 ORS. [L. NAGESWARA RAO, J.]

E.V. Chinnaiah (supra) has been referred for consideration by a larger A Bench in State of Punjab v. Davinder Singh25. 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.

34Copy pinpoint34. On the other hand, Dr. Rajeev Dhawan and Mr. R. B Balasubramanian submitted that backward classes can be sub-divided into backward and more backward classes in accordance with Indra Sawhney (supra), but further differentiation of MBCs is not permissible as it would amount to micro-classification, as correctly held by the High Court. C

35Copy pinpoint35. 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 D 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 E 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: F “(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? G (3) Whether the impugned enactment creates subclassification or micro-classification of Scheduled Castes so as to violate Article 14 of the Constitution of India?”

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36Copy pinpoint36. 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 B 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 C 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 D out that sub-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 E 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.

37Copy pinpoint37. 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 F 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. G 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 Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka26:

H 26 1985 Supp SCC 714

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 71 ORS. [L. NAGESWARA RAO, J.]

“802. We are of the opinion that there is no constitutional or A 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 B 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 C 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 sub-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 semi-nomadic tribes etc.” Group B comprises professional group like tappers, weavers, carpenters, ironsmiths, goldsmiths, kamsalins etc. Group C pertains to “Scheduled G 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. H

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803. There is another way of looking at this issue. Article B 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 C 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 and dry. D 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 sub-classification 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.

38Copy pinpoint38. By drawing strength from E.V. Chinnaiah (supra), the High Court was of the firm view that there cannot be any sub-division 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 H Commission for Backward Classes under Article 342-A. Admittedly,

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 73 ORS. [L. NAGESWARA RAO, J.]

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

39Copy pinpoint39. The constitutionality of the 2021 Act was assessed by the C 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 amendments made by the State of Tamil Nadu to statutes placed in the Ninth Schedule, which were also included in the Ninth Schedule.

40Copy pinpoint40. 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 F 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 G 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. H

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41Copy pinpoint41. 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 D (supra), Godavari Sugar Mills Ltd. (supra) and UCO Bank v. Dipak Debbarma 27.

42Copy pinpoint42. 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. E 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. F

43Copy pinpoint43. 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. G 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 H 27 (2017) 2 SCC 585

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 75 ORS. [L. NAGESWARA RAO, J.]

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 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 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 G 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 H

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A 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 B 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.

44Copy pinpoint44. 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 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 Bombay28, 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 unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no

28 H (1955) 2 SCR 164

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 77 ORS. [L. NAGESWARA RAO, J.]

fetter or limitation on the plenary powers which the State A 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 B 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 Courtthat the State Legislature lacked legislative competence to enact the 2021 Act on account of Article 31-B.

45Copy pinpoint45. 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 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 E 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 F 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.

46Copy pinpoint46. The conclusion of the High Court that determining the extent of reservation amongst the ‘Backward Classes of citizens’ can be done G 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. H

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A D. Effect of the 1994 Act receiving Presidential Assent under Article 31-C of the Constitution

47Copy pinpoint47. 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 D 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 Maharashtra29 and Rajiv Sarin v. State of Uttarakhand30.

48Copy pinpoint48. Mr. Vaidyanathan relied upon a judgment of this Court in State of Kerala v. Peoples Union for Civil Liberties31 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 Maharashtra33 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 F 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 G 29

(1966) 3 SCR 885

30 (2011) 8 SCC 708 31 (2009) 8 SCC 46 32 2019 SCC Online Bom 4408 33 2002 SCC Online Bom 735 34 H 1978 SCC Online MP 12

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 79 ORS. [L. NAGESWARA RAO, J.]

of Article 254. Mr. Vaidyanathan contended that assent of the President A 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 B or posts In the services under the State within the Reservation for the Scheduled Castes) Act, 2009.

49Copy pinpoint49. 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 C 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 D of the 1994 Act, which could not have been done by the Governor.

50Copy pinpoint50. 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 E 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 statute which has received the assent of the President, F 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 G 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 H

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A 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 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.

51Copy pinpoint51. 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 E 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. F IV. Caste-based classification

52Copy pinpoint52. Internal reservation of 10.5 per cent for the Vanniakula Kshatriyas was challenged by the writ petitioners before the 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 G amounted to discrimination to the other communities, was accepted by the High Court.

53Copy pinpoint53. 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 H

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 81 ORS. [L. NAGESWARA RAO, J.]

that such classification on the basis of caste is impermissible. This Court A 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 B 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; C (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.” 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.

54Copy pinpoint54. 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 F 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 G to justify the reasonableness of the sub-classification 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 reservation for the Vanniakula Kshatriyas. We propose to deal with that point subsequently. At present, we have answered the H

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A 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

55Copy pinpoint55. 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 sub-classification of MBCs and DNCs into three C 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), D 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 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.

56Copy pinpoint56. 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

35 H (2018) 10 SCC 396

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 83 ORS. [L. NAGESWARA RAO, J.]