# PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL & ORS

- **Citation:** [2022] 19 S.C.R. 42
- **Court:** Supreme Court of India
- **Decided:** 2022-03-31
- **Case number:** Civil Appeal No. 2600 of 2022
- **Bench:** L. Nageswara Rao, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pattali-makkal-katchi-v-a-mayilerumperumal-ors-36235
- **Pages:** 58

## Headnote

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 - Tamil Nadu Backward Classes, Scheduled
Castes and Scheduled Tribes (Reservation of seats in Educational
Institutions and of appointments or posts in the Services under the
State) Act, 1993 - ss. 2, 3(a), 4, 5 & 7 - Validity of 2021 Act -
Backward Class Reservation - Reservation of seats in educational
institutions - Reservation in appointments or posts in the services
under the state - Classification of Backward Classes - An Act (2021
Act) for special reservation within 20% reserved Most Backward
Classes (MBCs) and De-notified Communities (DNCs) was passed
by State assembly - The bill provides reservation of seats in private
educational institutions, and reservation in appointment or posts in
the services under the State - 10.5% reservation was specifically
earmarked for the Vanniyakula Kshatriya community - Writ petitions
were filed in the High Court assailing the constitutional validity of
2021 Act - The High Court held that the State Legislature had no
competence to enact the 2021 Act and there was no quantifiable
data - The High Court further found that the internal reservation
made only on the basis of caste is violative of Constitution - On
appeal, held: There is no bar on the legislative competence of the
State to enact the 2021 Act - 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 - By taking into account
the population of the Vanniakula Kshatriyas as enumerated in the
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report of the Ambasankar Commission in 1985, the Chairman
recommended internal reservation, i.e., 10.5 per cent - 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 community - There was no
substantial basis for classifying the Vanniakula Kshatriyas into one
group to be treated differentially from the remaining 115 communities
within the MBCs and DNCs, and therefore, the 2021 Act is in
violation of Articles 14, 15 and 16.
Constitution of India - Art. 341 - 102nd Amendment Act -
Sub Categorisation of Classes - 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 - A close scrutiny of E.V. Chinnaiah would make it clear
that the High Court was wrong in relying upon the said judgment to
hold that sub classification of backward classes is beyond the
legislative competence of the State - 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.
Constitution (First Amendment) Act, 1951 - Article 31-B - 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- Thus, Article
31-B does not operate as a hurdle for the State to enact statutes on
matters ancillary to the 1994 Act - 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.
Disposing of the appeals, the Court
Held: 1.1 Equal laws would have to be applied to all in the
same situation, and there should be no discrimina

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SUPREME COURT REPORTS
[2022] 19 S.C.R.
[2022] 19 S.C.R. 42
42
PATTALI MAKKAL KATCHI
v.
A. MAYILERUMPERUMAL & ORS.
(Civil Appeal No. 2600 of 2022)
MARCH 31, 2022
[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]
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 - Tamil Nadu Backward Classes, Scheduled
Castes and Scheduled Tribes (Reservation of seats in Educational
Institutions and of appointments or posts in the Services under the
State) Act, 1993 - ss. 2, 3(a), 4, 5 & 7 - Validity of 2021 Act -
Backward Class Reservation - Reservation of seats in educational
institutions - Reservation in appointments or posts in the services
under the state - Classification of Backward Classes - An Act (2021
Act) for special reservation within 20% reserved Most Backward
Classes (MBCs) and De-notified Communities (DNCs) was passed
by State assembly - The bill provides reservation of seats in private
educational institutions, and reservation in appointment or posts in
the services under the State - 10.5% reservation was specifically
earmarked for the Vanniyakula Kshatriya community - Writ petitions
were filed in the High Court assailing the constitutional validity of
2021 Act - The High Court held that the State Legislature had no
competence to enact the 2021 Act and there was no quantifiable
data - The High Court further found that the internal reservation
made only on the basis of caste is violative of Constitution - On
appeal, held: There is no bar on the legislative competence of the
State to enact the 2021 Act - 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 - By taking into account
the population of the Vanniakula Kshatriyas as enumerated in the
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report of the Ambasankar Commission in 1985, the Chairman
recommended internal reservation, i.e., 10.5 per cent - 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 community - There was no
substantial basis for classifying the Vanniakula Kshatriyas into one
group to be treated differentially from the remaining 115 communities
within the MBCs and DNCs, and therefore, the 2021 Act is in
violation of Articles 14, 15 and 16.
Constitution of India - Art. 341 - 102nd Amendment Act -
Sub Categorisation of Classes - 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 - A close scrutiny of E.V. Chinnaiah would make it clear
that the High Court was wrong in relying upon the said judgment to
hold that sub classification of backward classes is beyond the
legislative competence of the State - 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.
Constitution (First Amendment) Act, 1951 - Article 31-B - 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- Thus, Article
31-B does not operate as a hurdle for the State to enact statutes on
matters ancillary to the 1994 Act - 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.
Disposing of the appeals, the Court
Held: 1.1 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
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SUPREME COURT REPORTS
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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 invalid. The whole doctrine of classification is based
on discrimination without reason and discrimination with reason
and on the well-known fact that the circumstances which govern
one set of persons or objects may not necessarily be the same as
those governing another set of persons or objects so that the
question of unequal treatment does not really arise as between
persons governed by different conditions and different sets of
circumstances. [Para 71][93-E-G; 94-A-B]
1.2 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. Articles15(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. 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
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relation to the object sought to be achieved is immaterial.[Para
72][94-B-F]
1.3 The object of the 2021 Act is to achieve equitable
distribution of the benefit of 20 per cent reservation provided to
MBCs and DNCs. At the cost of repetition, at the time of
enactment of the 2021 Act, 116 castes were to be found in the
cumulative lists of MBCs and DNCs. Choosing a particular caste
and providing a special reservation of 10.5 per cent out of the 20
per cent to such caste is discriminatory, in the absence of any
sound differentiation from communities who are similarly situated
and were, therefore, grouped together for the purposes 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. [Para 73][94-F-G; 95-A-B]
The justification on behalf of the State is that sufficient
material was gathered by the Tamil Nadu Backward Classes
Commission to show that there was inadequate representation,
disproportionate to the population of the Vanniakula Kshatriyas,
thereby culminating in the 2021 Act, which aimed to achieve
equitable distribution of reservation amongst MBCs and DNCs.
A perusal of the discussion in the earlier paragraphs would
disclose that the letter from the Chairman, Backward Classes
Commission is on the basis of antiquated data, without any
assessment of the relative backwardness and representation of
the Vanniakula Kshatriyas and their ability to compete with the
remaining 115 communities within the MBCs and DNCs.
Additionally, recommendations therein are solely based on
population. To differentiate a particular class / category from
others, there should be a substantial distinction which clearly
demarcates that class / category. In the instant case, we see no
justification for how the Vanniakula Kshatriyas can be treated
asa different class and meted out preferential treatment, being
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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 and Jarnail Singh. Accordingly, this court holds
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. [Para 74][95-B-G]
2. There is no bar on the legislative competence of the
State to enact the 2021 Act. 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. 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. Prior to the 105th
Amendment Act, what was prohibited for the State to carry out
under Article 342-A is the identification of SEBCs, by inclusion
or exclusion of communities in the Presidential list of SEBCs. It
is clear that the exercise of identification of MBCs and DNCs
had been completed by the State pursuant to the 1994 Act. There
is no bar to the sub-classification amongst backward classes,
which has been expressly approved in Indra Sawhney. Even
considering the judgment in E.V. Chinnaiah, which dealt with the
sub-classification of Scheduled Castes identified in the
Presidential list under Article 341 and held that any sub-division
of Scheduled Castes by the State would amount to tinkering with
the Presidential list, the State's competence in the present case
to enact the 2021 Act is not taken away on this ground as,
admittedly, the Presidential list of SEBCs is yet to be published,
making the question of tinkering with such list redundant. Placing
of the 1994 Act under the Ninth Schedule cannot operate as a
hurdle for the State to enact legislations on matters ancillary to
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the 1994 Act. Legislative competence of the State Legislature
can only be circumscribed by express prohibition contained in
the Constitution itself and Article 31-B does not stipulate any
such express prohibition on the legislative powers of the State.
Detailing the extent of reservation for communities already
identified as MBCs and DNCs, which is the thrust of the 2021
Act, cannot be said to be in conflict with the 1994 Act, as
determination of extent of reservation for various communities
was not the subject matter of the 1994 Act. The 1994 Act, having
received the assent of the President under Article 31-C, does
not prohibit the State Legislature from enacting a legislation with
the approval of the Governor on matters ancillary to the 1994
Act, as Article 31-C does not place any fetter on the legislative
powers of the State. The State cannot be compelled to seek the
assent of the President for a legislation granting internal
reservation, when it is empowered to provide reservation and
other special measures for backward classes, by way of legislation
as well as executive orders, under Articles 15(4) and 16(4) of the
Constitution. On the issue of caste- based classification, Indra
Sawhney 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, it is found that the Government has committed
an error in accepting the recommendations. Finally, on the 2021
Act, there is no substantial basis for classifying the Vanniakula
Kshatriyas into one group to be treated differentially from the
remaining 115 communities within the MBCs and DNCs, and
therefore, the 2021 Act is in violation of Articles 14, 15 and 16.
This Court upholds the judgment of the High Court on this aspect.
Given our conclusion on the 2021 Act being ultra vires Articles
14, 15 and 16 of the Constitution, this Court has 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. [Para
77][96-G-H; 97-A-H; 98-A-H; 99-A-D]
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL &
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SUPREME COURT REPORTS
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Dr Jaishri Laxmanrao Patil v. Chief Minister (2021) 8
SCC 1; Indra Sawhney v. Union of India (1992) 3 Supp
SCC 217 : [1992] 2 Supp SCR 454; E.V. Chinnaiah v.
State of A.P. (2005) 1 SCC 394 : [2004] 5 Suppl. SCR
972; Maharaj Umeg Singh v. State of Bombay 1955
AIR 540 : [1955] 2 SCR 164; - followed.
Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC
396; Shrimanth Balasaheb Patil v. Speaker, Karnataka
Legislative Assembly (2020) 2 SCC 595 : [2019] 16
SCR 886; - relied on.
State of Madras v. Srimathi Champakam Dorairajan
1951 AIR 226 : [1951] SCR 525; S.V. Joshi v. State of
Karnataka (2012) 7 SCC 41; M. Nagaraj v. Union of
India (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336;
Ashoka Kumar Thakur v. Union of India (2008) 6 SCC
1 : [2008] 4 SCR 1; Abdul Rahim Ismail C. Rahimtoola
v. State of Bombay 1959 AIR 1315 : [1960] 1 SCR
285; Ebrahim Vazir Mavat v. State of Bombay (1954)
AIR 229 : [1954] SCR 933; The Godavari Sugar Mills
Ltd. v. S. B. Kamble (1975) 1 SCC 696 : [1975] 3 SCR
885; Shri Ram Ram Narain Medhi v. State of Bombay
(1959) AIR 459 : [1959] 1 Supp SCR 489; Sajjan Singh
v. State of Rajasthan (1965) AIR 845 : [1965] 1 SCR
933; Ramanlal Gulab Chand Shah v. State of Gujarat
(1969) AIR 168 : [1969] 1 SCR 42; State of Orissa v.
Chandrasekhar Singh Bhoi (1969) 2 SCC 334 : [1970]
1 SCR 593; State of Maharashtra v. Madhavrao
Damodar Patil (1968 ) AIR 1395 : [1968] 3 SCR 712;
K.S. Paripoornan v. State of Kerala (1994) 5 SCC 593
: [1994] 3 Suppl. SCR 405; Shri Prithvi Cotton Mills
Ltd. v. Broach Borough Municipality (1969) 2 SCC 283
: [1970] 1 SCR 358; Janapada Sabha Chhindwara v.
Central Provinces Syndicate Ltd. (1970) 1 SCC 509 :
[1970] 3 SCR 745; Plaut v. Spendthrift Farm Inc. 514
U.S. 211 (1995); Saghir Ahmad v. State of U.P. (1954)
AIR 728 : (1955) 1 SCR 707; M.P.V. Sundararamier
& Co. v. State of A.P. (1958) AIR 468 : [1958] 0 SCR
1422; Deep Chand v. State of Uttar Pradesh (1959) AIR
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648 : [1959] 2 Supp SCR 8; Patel Gordhandas
Hargovindas v. Municipal Commissioner, Ahmedabad
1963 AIR 1742 : [1964] 2 SCR 608; State of Punjab v.
Davinder Singh (2020) 8 SCC 1; K.C. Vasanth Kumar
v. State of Karnataka (1988) 4 SCC 590; UCO Bank v.
Dipak Debbarma (2017) 2 SCC 585 : [2016] 11 SCR
723; Arnold Rodricks v. State of Maharashtra 1966 AIR
1788 : [1966] 3 SCR 885; Rajiv Sarin v. State of
Uttarakhand (2011) 8 SCC 708 : [2011] 9 SCR 1012;
State of Kerala v. Peoples Union for Civil Liberties
(2009) 8 SCC 46 : [2009] 11 SCR 142; Dattatray Yedu
Thombre v. State of Maharashtra (2019) SCC Online
Bom 4408; Citizens of Deulgaon Raja v. State of
Maharashtra (2003) 4 Bom CR 223 : (2002) SCC
Online Bom 735; Rasal Singh v. State of M.P. (1978)
SCC Online MP 12; Barium Chemicals Ltd. v. Company
Law Board (1967) AIR 295 : [1966] Supp SCR 311;
State of A.P. v. U.S.V. Balram (1972) 1 SCC 660 : [1972]
3 SCR 247; Ram Singh v. Union of India (2015) 4 SCC
497 : [2003] 5 Suppl. SCR 357; V. Narayana Rao v.
State of A.P. AIR 1987 AP 53 : (1986) 2 Andh LT 258;
Chiranjit Lal Chowdhuri v. Union of India (1951) AIR
41 : [1950] SCR 869; Ajay Kumar Singh v. State of
Bihar (1994) 4 SCC 401; Col. A.S. Iyer v. V.
Balasubramanyam (1980) 1 SCC 634 : [1980] 1 SCR
1036; State of West Bengal v. Anwar Ali Sarkar (1952)
AIR 75 : [1952] SCR 284; Kathi Raning Rawat v. State
of Saurashtra (1952) AIR 123 : [1952] SCR 435; State
of Kerala v. N.M Thomas (1976) 2 SCC 310 : [1976] 1
SCR 906; Subramanian Swamy v. Director, Central
Bureau of Investigation (2014) 8 SCC 682 : [2014] 6
SCR 873; M.P. Cement Manufacturers' Association v.
State of M. P. (2004) 2 SCC 249 : [2003] 6 Suppl. SCR
557- referred to.
Case Law Reference
[1951] SCR 525
referred to
Para 2
[2006] 7 Suppl. SCR336
referred to
Para 7
[2008] 4 SCR 1
referred to
Para 7
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL &
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[1960] 1 SCR 285
referred to
Para 17
[2019] 16 SCR 886
relied on
Para 17
[1954] SCR 933
referred to
Para 18
[1975] 3 SCR 885
referred to
Para 21
[1959] 1 Supp SCR 489
referred to
Para 21
[1965] 1 SCR 933
referred to
Para 21
[1969] 1 SCR 42
referred to
Para 21
[1970] 1 SCR 593
referred to
Para 21
[1968] 3 SCR 712
referred to
Para 21
[1994] 3 Suppl. SCR405
referred to
Para 24
[1970] 1 SCR 358
referred to
Para 24
[1970] 3 SCR 745
referred to
Para 27
[1964] 2 SCR 608
referred to
Para 29
[2004] 5 Suppl. SCR972
followed
Para 32
(1955) 1 SCR 707
referred to
Para 32
[1958] 0 SCR 1422
referred to
Para 32
[1959] 2 Supp SCR 8
referred to
Para 32
[1992] 2 Supp SCR 454
followed
Para 33
[1972] 3 SCR 247
referred to
Patra 37
[2016] 11 SCR 723
referred to
Para 41
[1955] 2 SCR 164
followed
Para 43
[1966] 3 SCR 885
referred to
Para 47
[2011] 9 SCR 1012
referred to
Para 47
[2009] 11 SCR 142
referred to
Para 48
[1966] Supp SCR 311
referred to
Para 56
[2003] 5 Suppl. SCR357
referred to
Para 65
[1950] SCR 869
referred to
Para 70
[1980] 1 SCR 1036
referred to
Para 70
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[1952] SCR 284
referred to
Para 72
[1952] SCR 435
referred to
Para 72
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2600
of 2022.
From the Judgment and Order dated 01.11.2021 of the High Court
of Madras at Madurai Bench in W.P. No. 7765 of 2021.
With
Civil Appeal Nos. 2601, 2602, 2603, 2604, 2605, 2606, 2607, 2608,
2609, 2610, 2611, 2612-2642 of 2022.
Krishnamoorthy, AAG, Abhishek Manu Singhvi, P. Wilson, Rakesh
Diwedi, Mukul Rohatgi, C. S. Vaidyanathan, M. N. Rao, Radhakrishnan,
Vijay Narayan, Sr. Advs., Varun K. Chopra, Amit Bhandari, D. Kumanan,
Naman Joshi, Yash Johri, Sheikh F. Kalia, Guneet Sidhu, Ms. Sansriti
Pathak, S. Agilesh Kumar, B. Karunakaran, K. Balambihai, Anoop
Prakash Awasthi, Ms. Diksha Rai, Gowtham Kumar, Ankit Agarwal,
Prateek Bharadwaj, Ms. Ragini Pandey, S. Thananjayan, Ms. Jaswanthi,
Ms. Aaina Verma, M. R. Jothimanian, K. Balu, Vinoba Boopathy, Ms.
Promila, Ms. C. Rubavathi, Balaji Srinivasan, Ms. Pallavi Sengupta, Ms.
Aakriti Priya, Ms. Garima Jain, Ms. Lakshmi Rao, Prateek Yadav,
Mohammed Shahrukh, G. Sivabalamurugan, Mahendran Selvaraj, P.
Shankar, Ms. Vibha Srivasta, Advs. for the Appellant.
Sanjay Jain, ASG, R. Balasubramanian, Dr. Rajeev Dhawan, K.
M. Vijayan, S. Nagamuthu, Gopal Shankaranarayanan, V. Prakash,
Jaideep Gupta, Colin Gonsalves, Devadatt Kamat, Sr. Advs., R. Anand,
Nithin Saravanan, Ms. Arunima Singh, Karunakar Mahalik, Ms. Manika
Priya Saravanan, Ms. Priyadarshini, Ms. Ridhima Malhotra, P. V.
Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, V. Sibi Kargil, Anubhav
Chaturvedi, Arun Singh, Abhisar Thakral, S. Gowthaman, Ms. M.
Venmani, G. Venkateswaramoorthy, G. Ananda Selvam, Dr. Ram Sankar,
Dr. Santhakumaran, S. Vinayak, Ms. Lakshmi Ramamurthy, Parijat
Kishore, Beno Bencigar, Ms. N.P. Haibila, Dema Seshadiri Naidu, M.
P. Parthiban, Ishan George, Anish R. Shah, R. Sudhakaran, Ananvay
Anandvardhan, Siddharth Chapalgaokar, Deepak Goel, Chinmayee
Chandra, Amrish Kumar, M. P. Parthiban, Ms. Shalini Mishra, Ms. Shivani
Vij, Ms. Porkodi, S. Ramasubramanian, A. S. Vairawan, C. Ramar, G. S.
Mani, Rajesh Maurya, Abhay Singh Yadav, Ajay Singh, Pramod Kumar
PATTALI MAKKAL KATCHI v. A. MAYILERUMPERUMAL &
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Yadav, R. Sathish, Rahul Kaushik, Sanjay Visen, A. Rajarajan, Ms. L.
Vasuki Rajarajan, K. Paari Vendhan, Ms. Babita Mishra, Ms. Adira A.
Nair, Prabhu Ramasubramanian, Raghunatha Sethupathy, G.
Murugendran, Karuppaiah Meeyyappan, Ms. Priya, S. Senthil Elangovan,
S. Krishna Moorthy, K. Kumaravadivel, Rajeev Maheshwaranand Roy,
Nishe Rajen Shonker, Ms. Anu K. Joy, Alim Anvar, Shiyas Kr., Satya
Mitra, M. Yogesh Kanna, Rajarajeshwaran S., P. M. Vishnu Varthanan,
R. Vignesh, Pradeep Phaniraj Advs. for the Respondents.
The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
Leave granted.
1. The Tamil Nadu Special Reservation of seats in Educational
Institutions including Private Educational Institutions and of appointments
or posts in the services under the State within the Reservation for the
Most Backward Classes and Denotified Communities Act, 2021 was
declared as unconstitutional by the High Court of Madras, Madurai Bench
by a judgment dated 01.11.2021. The correctness of the said judgment is
challenged in these appeals.
I. Background
2. Communal representation in public services existed in the
Madras Presidency prior to the Constitution of India coming into force.
The Madras High Court declared G.O. Ms. No. 3437 dated 21.11.1947,
by which communal representation was provided, as unconstitutional.
The said judgment of the High Court was upheld by this Court in State
of Madras v. Srimathi Champakam Dorairajan1. This Court held
that the classification made in the said G.O. proceeded on the basis of
religion, race and caste and constituted a violation of the fundamental
rights guaranteed under Article 29(2) of the Constitution of India. On
18.06.1951, Article 15(4) was inserted by the Constitution (First
Amendment) Act, 1951, enabling the State to make any special provision
for advancement of socially and educationally backward classes.
Consequent to the judgment of this Court, G.O. Ms. No. 2432 dated
27.09.1951 was issued by the Madras State adopting a 20-point roster,
with three seats reserved for Scheduled Castes and Scheduled Tribes
and five for Backward Classes, amounting to 15 per cent reservation
1 1951 SCR 525
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for Scheduled Castes and Scheduled Tribes together and 25 per cent for
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 31.01.1957, the State Government made a subclassification amongst Backward Classes. 'Most Backward Communities'
were identified and educational concessions were extended to them.
There were 58 communities in the list of 'Most Backward Communities',
with Vanniakula Kshatriyas listed at serial No. 1.
3. The State Government appointed a Backward Class Commission
under the Chairmanship of Shri A.N. Sattanathan, by G.O. Ms. No. 842
dated 13.11.1969 "to make a scientific and factual investigation of the
conditions of backward classes in the State and recommend specific
measures of relief for their advancement". The Commission submitted
its report in November, 1970, recommending reservation of 33 per cent
of posts under the State Government for Backward Classes as well as
of seats in professional and educational institutions. After considering
the recommendations of the said Commission, the State Government, by
G.O. Ms. No. 695 dated 07.06.1971, enhanced the existing reservation
for Backward Classes from 25 per cent to 31 per cent and that for
Scheduled Castes and Scheduled Tribes from 16 per cent to 18 per cent
with respect to seats in all kinds of educational institutions under
Government, local body and aided managements and posts for recruitment
to public services. On 01.02.1980, the reservation quota for Backward
Classes was enhanced to 50 per cent for appointment to posts in services
and admissions to educational institutions under the State Government.
4. Later, the Tamil Nadu Second Backward Classes Commission
was appointed by the Government on 13.12.1982. The said Commission
was headed by Shri J.A. Ambasankar, I.A.S. (retd.). A study was
conducted by the Commission to determine the level of backwardness
on the basis of various indicators of social and educational backwardness
bearing points, with each community assessed being awarded a score
from a total of 15 points. According to the Chairman, such of those
communities which have secured 8, 9 and 10 points should be grouped
as 'A', those with 11, 12 and 13 points should be placed in group 'B' and
those with 14 and 15 points should be categorised as group 'C'. The
Chairman of the Commission recommended compartmental reservation
on the basis of the different groupings and provided mechanism for
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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.
5. On 30.07.1985, the State Government issued G.O. Ms. No.
1564 notifying 201 communities as Backward Classes throughout the
State of Tamil Nadu for the purposes of Articles 15(4) and 16(4) of the
Constitution. G.O. Ms. Nos. 1566 and 1567 were also issued on the
same day, classifying 39 communities as 'Most Backward Classes'
(MBCs) and 68 communities as 'Denotified Communities' (DNCs),
respectively. The Vanniakula Kshatriya community was placed at sl. no.
26 in the list of MBCs. On 28.03.1989, separate reservation of 20 per
cent, out of the available 50 per cent for Backward Classes, was provided
for MBCs and DNCs together and the remaining 30 per cent set aside
for Backward Classes. Later, on 22.06.1990, one per cent separate
reservation was provided to Scheduled Tribes in public services and
educational institutions. Thus, from 1990, 30 per cent reservation was
provided for Backward Classes, 20 per cent for MBCs and DNCs, 18
per cent for Scheduled Castes and 1 per cent for Scheduled Tribes,
totalling to 69 per cent.
6. Act No. 45 of 1994, i.e., the Tamil Nadu Backward Classes,
Scheduled Castes and Scheduled Tribes (Reservation of seats in
Educational Institutions and of appointments or posts in the Services
under the State) Act, 1993 (hereinafter, the "1994 Act") was enacted
to provide for reservation in admissions to educational institutions in the
State and for appointments in the services under the State. 'Backward
Classes of citizens' are defined under Section 3(a) thereof as "the class
or classes of citizens who are socially and educationally backward, as
may be notified by the Government in the Tamil Nadu Government
Gazette, and includes the Most Backward Classes and the Denotified
Communities". Section 4 provides that reservation in respect of annual
permitted strength in educational institutions for 'Backward Classes of
citizens' and for persons belonging to Scheduled Castes and Scheduled
Tribes shall be 69 per cent. According to Section 5, 69 per cent of
appointments or posts in the services under the State shall be reserved
for 'Backward Classes of citizens', Scheduled Castes and Scheduled
Tribes. The allocation of percentage of reservation for Backward Classes,
MBCs and DNCs, Scheduled Castes and Scheduled Tribes remained
unchanged. Additionally, by Section 7 of the 1994 Act, the Government
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reserved power to classify or sub-classify, by notification, the 'Backward
Classes of citizens' for the purposes of the 1994 Act, on the basis of
reports of the Tamil Nadu Backward Classes Commission constituted
on 15.03.1993. On 19.07.1994, by G.O. Ms. No. 28, the Government of
Tamil Nadu, under Section 3(a) of the 1994 Act, notified 143 communities
as Backward Classes, 41 communities as MBCs and 68 communities as
DNCs. By the Constitution (Seventy-sixth Amendment) Act, 1994, which
received the assent of the President on 31.08.1994, the 1994 Act was
placed in the Ninth Schedule of the Constitution, as Entry 257-A.
7. The validity of the 1994 Act was challenged by way of writ
petitions filed in this Court. The said writ petitions were disposed of by
this Court on 13.07.2010 in S.V. Joshi v. State of Karnataka2, after
taking note of the fact that the exercise of collecting quantifiable data to
justify the reservation under the 1994 Act, pursuant to judgments of this
Court in M. Nagaraj v. Union of India3 and Ashoka Kumar Thakur
v. Union of India4, had not been undertaken. Further, the State
Government was directed to place quantifiable data before the Tamil
Nadu Backward Classes Commission, on the basis of which amongst
other things, the Commission would decide the quantum of reservation.
No opinion was expressed on the validity of the 1994 Act. Consequent
to the judgment of this Court in S.V. Joshi (supra), by G.O. Ms. No. 50
dated 11.07.2011, the Government of Tamil Nadu decided to continue to
implement reservation of 69 per cent as provided in the 1994 Act. It is
mentioned therein that a report of the Tamil Nadu Backward Classes
Commission was submitted to the Government on 08.07.2011 and
subsequently placed before the Cabinet, which was satisfied about the
justification for continuation of reservation of 69 per cent.
8. Thereafter, Writ Petition No.365 of 2012 was filed under Article
32 of the Constitution challenging the 1994 Act, which is pending
consideration before this Court. On 21.03.2012, by G.O. (Ms) No. 35,
the Government prescribed additional terms of reference to the Tamil
Nadu Backward Classes Commission, requesting the Commission to
examine and recommend upon the demand made by various communities
to provide for internal reservation, within the reservation provided to
MBCs and DNCs. There is a reference in the said G.O. to a writ petition
2 (2012) 7 SCC 41
3 (2006) 8 SCC 212
4 (2008) 6 SCC 1
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filed before the High Court of Madras as well as representations made
by members of the Vanniakula Kshatriya community and other
communities, seeking internal reservation for each of these communities
within the 20 per cent reservation for MBCs and DNCs. On 13.06.2012,
a report was submitted by the Tamil Nadu Backward Classes
Commission, chaired by Justice M.S. Janarthanam (retd.) of the Madras
High Court. The Chairman recommended internal reservation of 10.5
per cent for the Vanniakula Kshatriyas, with the remaining six members
of the Commission submitting a dissent note.
9. The Tamil Nadu Backward Classes Commission was
reconstituted by G.O. (MS) No. 52 dated 08.07.2020 and Justice M.
Thanikachalam (retd.) of the Madras High Court, was appointed as the
Chairman. One of the terms of reference prescribed to the Backward
Classes Commission was to examine and recommend upon the demand
made by various communities to provide for internal reservation within
the reservation provided for MBCs. In addition thereto, another
Commission was constituted by G.O. (MS) No. 99 dated 21.12.2020, for
the purpose of collection of caste-wise quantifiable data and was headed
by Justice A. Kulasekaran (retd.) of the Madras High Court. The
Government recognized that the caste-wise data collected by the
Ambasankar Commission was more than three decades old and there
was an urgent need to collect caste and tribe wise data "as on date". It
was stated in the said G.O. that the Commission was constituted in
response to the demands of various political parties and community
organizations.
10. A letter was written on 18.02.2021 by the Government to
Justice M. Thanikachalam, Chairman of the Tamil Nadu Backward
Classes Commission, to give his opinion regarding the possibility of
providing internal reservation amongst the communities listed as MBCs
and DNCs within the 20 per cent reservation made available to them.
Justice M. Thanikachalam promptly responded on 22.02.2021,
recommending sub-categorization amongst the MBCs and DNCs based
on the proportion of their population. Immediately thereafter, on
24.02.2021, a bill for special reservation within the 20 per cent reserved
for MBCs and DNCs was placed before the State Legislative Assembly.
On the same day, the bill was passed and it received the assent of the
Governor on 26.02.2021. By the 2021 Act, reservation of seats in
educational institutions, including private educational institutions, and
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reservation in appointment or posts in the services under the State were
provided in the following manner: ten and a half per cent for 'Part-MBC
(V) Communities', seven per cent for 'Part-MBC and DNC
Communities' and two and a half per cent for 'Part-MBC Communities'.
In terms of the Schedule annexed to the 2021 Act, 'Part-MBC(V)'
consists of Vanniakula Kshatriya community (including Vanniyar, Vanniya,
Vannia Gounder, Gounder or Kander, Padayachi, Palli and Agnikula
Kshatriya), 'Part-MBC and DNC' comprise 25 communities from the
MBCs and 68 DNCs and the remaining 22 communities of MBCs come
under the category of 'Part-MBC'.
11. Writ petitions were filed in the High Court of Madras assailing
the constitutional validity of the 2021 Act. The High Court framed the
following points for consideration:
"(i) Whether the State Legislature has competency to make
the impugned Act after 102nd Constitutional Amendment Act,
2018 and before 105th Constitutional Amendment Act, 2021?
(ii) Whether an Act placed under the Ninth Schedule of the
Constitution of India can be varied without amending the said
Act?
(iii) Whether the State Government had the power to take any
decision with regard to Backward Classes in the teeth of the
Constitutional provisions, more particularly, Article 338-B of
the Constitution of India?
(iv) Whether the State has power to provide reservation based
on caste?
(v) Whether reservation can be provided without any
quantifiable data on population, socio educational status and
representation of the backward classes in the services?
(vi) Whether the impugned Act providing reservation of 10.5%
to MBC(V), without any quantifiable data, is in violation of
Articles 14, 15 and 16 of the Constitution of India?
(vii) Whether the sub-classification of MBC into three
categories can be done solely based on adequate population
data, in the absence of any objective criteria?"
12. The High Court answered points (i) to (iii) by holding that the
State Legislature has no competence to enact the 2021 Act. The High
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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.
13. We have heard Dr. Abhishek Manu Singhvi, Mr. P. Wilson,
Mr. Rakesh Diwedi, Mr. Mukul Rohatgi, Mr. C.S. Vaidyanathan, Mr.
M. N. Rao and Mr. Radhakrishnan, learned Senior Counsel appearing
for the Appellants and Dr. Rajeev Dhawan, Mr. R. Balasubramanian,
Mr. K. M. Vijayan, Mr. S. Nagamuthu, Mr. Gopal Sankaranarayanan,
Mr. V. Prakash, Mr. Jaideep Gupta and Mr. Colin Gonsalves, learned
Senior Counsel appearing for the Respondents.
II. Reference to a larger Bench
14. At the outset, it is necessary to deal with the preliminary
submission made by some Senior Counsel appearing for the State of
Tamil Nadu for reference of these appeals to a Constitution Bench.
15. Dr. Abhishek Singhvi, Mr. Rakesh Dwivedi and Mr. Mukul
Rohatgi, learned Senior Counsel appearing for the State of Tamil Nadu,
submitted that the case involves interpretation of constitutional provisions
and therefore, it is appropriate that these appeals are heard by a
Constitution Bench. Mr. P. Wilson, learned Senior Counsel appearing
for the State and Mr. C.S. Vaidyanathan and Mr. M. N. Rao, learned
Senior Counsel appearing for the Appellants in Civil Appeals arising from
SLP (C) No. 19378 of 2021 and SLP (C) No. 19574 of 2021, respectively,
stated that there is no necessity of referring this matter to a larger Bench.
16. Dr. Singhvi submitted that challenge to the 1994 Act is pending
consideration before a Constitution Bench of this Court. He further stated
that adjudication of the dispute in these appeals would involve
interpretation of the Constitution (One Hundred and Fifth Amendment)
Act, 2021 (hereinafter, the "105th Amendment Act"). According to
Dr. Singhvi, this Court would have to decide whether the 105th
Amendment Act is clarificatory and dates back to the introduction of
Article 342-A. It is advisable that the said issue is decided by a larger
Bench. Mr. Dwivedi, supplementing the submissions of Dr. Singhvi,
referred to the findings of the High Court in the impugned judgment on
the lack of legislative competence of the State Legislature in enacting
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the 2021 Act with respect to Section 31-B of the Constitution. He stated
that the words "repeal or amend" appearing in Article 31-B would have
to be construed by this Court in these appeals to reach a determinative
finding. On this ground, he urged for these appeals to be decided by a
larger Bench.
17. Appearing on behalf of the Respondents, Dr. Rajeev Dhawan
and Mr. Gopal Sankaranarayanan emphatically argued that no ground
has been made out for referring these appeals to a larger Bench. Dr.
Dhawan argued that the adjudication of the dispute in these appeals
does not involve interpretation of any provision in the Constitution. Mr.
Sankaranarayanan submitted that reference to a Constitution Bench is
made only when the Court is satisfied that a substantial question of law
as to interpretation of the Constitution is involved, the determination of
which is necessary for disposal of the case. He placed reliance on two
judgments of this Court in Abdul Rahim Ismail C. Rahimtoola v. State
of Bombay5 and Shrimanth Balasaheb Patil v. Speaker, Karnataka
Legislative Assembly6.