PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & ORS.

2500 personnel and going door-to-door to collect particulars of around five crore people over a period of two years, with a view to find out and identify 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 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.

57Copy pinpoint57. 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

36 1966 Supp SCR 311 H

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A 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 Backward Classes Commission, headed by Justice Janarthanam and the letter of Justice Thanikachalam. Given that the Sattanathan Commission and the Ambasankar Commission B 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.

58Copy pinpoint58. 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 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.

59Copy pinpoint59. By G.O. (Ms) No. 35 dated 21.03.2012, the Government of Tamil Nadu requested the Tamil Nadu Backward Classes Commission G 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 37 (1972) 1 SCC 660 38 H B.K. Pavitra v. Union of India (2019) 16 SCC 129

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the Commission. The other members of the Commission, except the A 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 not furnished to them. The majority members observed that their term was coming to an end in July, 2012 B 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 vice-chancellors 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.

60Copy pinpoint60. 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. 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 G 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. H

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A 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 of the Vanniakula Kshatriyas was 10.562 per cent. B 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 C preparation of roster for working out reservation would become complicated, if representations by other communities asking for internal reservation were to be accepted.

61Copy pinpoint61. By taking into account the population of the Vanniakula Kshatriyas as enumerated in the report of the Ambasankar Commission D 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 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.

62Copy pinpoint62. 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, H

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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 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 C 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 D 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”.

63Copy pinpoint63. 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 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 H

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A 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. B 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 internal reservation, which have the backing of the remaining members, or at the least, the approval of the majority.

64Copy pinpoint64. 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 G 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 H

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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.

65Copy pinpoint65. 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 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. F 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.

66Copy pinpoint66. It is observed that the proportion of the population of the G Vanniakula Kshatriyas to the total population of MBCs and DNCs, termed as the feasibility formula, was the sole criterion which was considered

39 Ram Singh v. Union of India (2015) 4 SCC 497 40 Dr Jaishri Laxmanrao Patil (supra) H

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A by Justice Janarthanam to recommend internal reservation for the Vanniakula Kshatriyas. The representations made by other communities within the MBCs seeking internal 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 B 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 C 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 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 H IC 152 : (1986) 2 Andh LT 258] , striking down the

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 91 ORS. [L. NAGESWARA RAO, J.]

enhancement of reservation from 25% to 44% for OBCs. The A 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 B be sustained in view of the law laid down by this Court.

67Copy pinpoint67. 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 C DNCs, many of whom have been bereft of any benefit of affirmative action, the Vanniakula Kshatriyas 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 D 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- E 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 F 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. Representation of Vanniyars in public posts in the Government of Tamil G 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 H

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A 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 B 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 C Court. We are further informed that numerous trusts have been established, which cater to the betterment of members, and educational needs of students in particular, from the Vanniyar community.

68Copy pinpoint68. We have referred to this data only to emphasize that the findings in the letter of Justice Thanikachalam had to be suitably supported by D 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.

69Copy pinpoint69. 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 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.

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70Copy pinpoint70. 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 B Appellants, relied on Chiranjit Lal Chowdhuri v. Union of India41, 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 Bihar42 to contend that the State is in the best position to determine what kind of C special provision should be made in favour of a particular class, having regard to the 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. D 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.

71Copy pinpoint71. 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 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 41 1950 SCR 869 42 (1994) 4 SCC 401 43 (1980) 1 SCC 634 44 State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284 H

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A 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. B

72Copy pinpoint72. 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 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 14 46. 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.

73Copy pinpoint73. 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 G 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 45 Kathi Raning Rawat v. State of Saurashtra 1952 SCR 435 46 State of Kerala v. N.M Thomas (1976) 2 SCC 310 47 H Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682

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together for the purposes 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.

74Copy pinpoint74. 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 C 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 D 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 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. G VI. Non-compliance with Article 338-B(9) of the Constitution

75Copy pinpoint75. 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 H

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A 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 the SEBCs. A proviso was inserted by the 105 th 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 B States. However, the 2021 Act was brought into force prior to the 105 th 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. E Legislative competence can only be circumscribed by express 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.

76Copy pinpoint76. The consequence of disregarding a mandatory consultation F 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. G VII. Conclusion

77Copy pinpoint77. 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:

H 48 M.P. Cement Manufacturers’ Association v. State of M. P. (2004) 2 SCC 249

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 97 ORS. [L. NAGESWARA RAO, J.]

(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 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, C 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 D 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 E 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. F

(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 G 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, H

98 SUPREME COURT REPORTS [2022] 19 S.C.R.

A 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 B 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. 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 F 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.

G (ii) Apart from approving the report of the Chairman of the Janarthanam Commission with respect to internal reservation for the Vanniakula Kshatriyas and making additional recommendations on the grouping of the remaining communities for specific percentages of reservation, the letter from Justice Thanikachalam does not refer to any H analysis or assessment of the relative backwardness and

PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & 99 ORS. [L. NAGESWARA RAO, J.]

representation of the communities within the MBCs and A 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 B 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 C 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.

78Copy pinpoint78. We make it clear that we have not expressed any opinion on D the merits of the writ petition challenging the 1994 Act, pending consideration before this Court, or, for that matter, 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. E

79Copy pinpoint79. The Appeals are disposed of accordingly.

Ankit Gyan Appeals disposed of. (Assisted by : Iram Jan, LCRA)