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A Madras High Court bench of Justices M. Duraisamy and Muralishankar yesterday while holding Tamil Nadu government’s law stipulating 10.5% internal reservation for Vanniyars within 20% quota allocated to Most Backward Castes (MBCs) in government jobs and educational institutions as unconstitutional has noted that it is an arbitrary micro classification.
The batch of petitions challenging the law was earlier listed before a bench of Justice MM Sundaresh (prior to his elevation to the Supreme Court) and Justice Kannamal.
Factual background of the case:
The Government of Tamil Nadu in 1993 enacted Tamil Nadu Backward Classes, Scheduled Caste and Scheduled Tribes (Reservation of Seats in Educational Institution and Appointments or Posts in the Services Under the State) Act 1993, to protect the existing 69% quota and in the 9th Schedule of the Constitution of India. Out of the 69% of the reservation, 20% was reserved for the Most Backward Classes in the educational institutions and in employment as per the act.
As per the 73rd Constitutional Amendment, the Act was placed under 9th Schedule of the Constitution and there cannot be any change in the proportion of reservation cannot be changed without amending the 1993 Act.
In 2010, a writ petition was filed by one C.N. Ramamurthy seeking internal reservation. Thereafter, the process of consultation for sub-classification within the 20% earmarked for MBCs began on June 13, 2012 when the then chairman of Tamil Nadu Backward Classes Commission recommended 10.5% reservation for the Vanniakula Khastriya (including Vanniar, Vanniya, Vannia Gounder, Gounder or Kander, Padayachi, Palli and Agnikula Kshatriya) community. However, the members of the BC Commission in 2013 had dissented with the recommendation.
In February 2021, the Government of Tamil Nadu passed an act providing internal reservation of 10.5 % to the Vanniyar Community under the category Most Backward Classes within 20 % reservation for MBCs and De-notified Communities. The bill provides for special reservation of seats for members of Vanniakula Kshatriya in Education Institutions including private Educational Institutions in the State appointments or posts in the services in the State of Tamil Nadu. The act has been introduced in the Assembly and published in the Gazetee on the same day.
The State Government, passed the law even before submission of a report by a Commission constituted on December 21, 2020 under the chairmanship of retired High Court judge A. Kulasekaran to collect quantifiable data on castes, communities and tribes in the State within six months.
A writ petition challenging the constitutional validity of this act was filed before the Madras High Court.
The petitioners contended that after the insertion of the 102nd Amendment to the Constitution of India, the State Government has no power to identify/classify any community as Backward and it is the sole domain of the Parliament and hence, the impugned Act is in violation of the Articles 338-B and 342-A of the Constitution of India. Further, the appropriate authority to notify a caste will be the National Commission for Backward Classes which is Constitutional Body under Article 333-B of the Constitution of India, under the Ministry of Social Justice and Empowerment.
It was further contended that Article 340 of the Constitution specifically provides that the President may, by order, appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of Socially and educationally Backward Classes(SEBC) within the territory of India and the difficulties under which they work and make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties. The State of Tamil Nadu has granted internal reservation of 10.5% out of 20% for Vanniyar Community alone. This is over 50% earmarked for MBC. In addition, the classification made on a particular premise of offering a larger slot to Vanniyars in MBC, is not in accordance with law.
The petitioner contended that there cannot be a preferential treatment from among the same class apart from that, similar matter is pending on the file of the Supreme Court in respect to Maratha Community in the State of Maharastra.
According to the petitioners earmarking 10.5% reservation for Vanniyars Caste alone beyond the proportion of their existing population and depriving the constitutional reservation of 115 other MBC castes in general and 68 DNC communities in particular, is arbitrary, illegal, discriminatory and in flagrant violation of Article 14 of the Constitution of India.
It was contended that without there being any Census, the Government passed a Bill for reservation for Vanniyar Community 10.5% under MBC without considering caste wise population and there is no data available with the State Government to invoke the enabling provisions in the Constitution to provide internal reservation. Moreover, the State Government without waiting for the recommendations of the Commission has passed the impugned Act without consultations or deliberations with all the stakeholders, especially, those communities who would be affected by the act.
Court’s conclusion:
Upon hearing the parties, the court broadly classified the questions of law into:
Competence of Legislative Assembly to pass the legislation in the light of 102nd Constitutional Amendment, 2018
The court found that by virtue of 102nd constitutional Amendment, the powers of Legislative Assembly to include and exclude Backward Class has been ousted and bestowed with Parliament of India under Article 342-A of the constitution of India. Whereas it is the specific case of the official respondents that the constitution (105th Amendment) Act, 2021, enacted by the Parliament, making amendments in Articles 338-B, 342-A and 366(26C), restored the power back to the State lists and the bestowed States with the power to identify and notify Backward Classes and thus, the power of the State for identification and notification of the Backward Classes stated to be lost by virtue of the Constitution (102nd Amendment) Act, 2018, has been restored through the above said 105th Amendment to the Constitution.
However, since Constitution (102nd Amendment) Act, 2018, came into existence in August, 2018 and the Constitution (105th Amendment) Act, 2021 came into existence in August, 2021 and the Act was brought into effect in February 2021, it was held that as on the date of enactment of the Act, the State Legislature did not have power to enact such legislation and hence was not competent to pass this legislation.
The court further held that since the 1994 Act got the Assent of President of India under Article 31-C of the Constitution of India, the same cannot be changed by the Governor even if the Council of Ministers had advised his Assent to it. The court was of the opinion that a combined reading of Articles 200 and 201of the Constitution makes it clear that the Constitutional scheme warrants that the Governor to reserve the Bill for the Assent of the President.
The court further held that according to the Constitution until the Act placed in 9th Schedule is amended or repealed by the competent Legislature, it cannot continue to be in force.
According to the judgment since the 1994 Act providing undivided 20% reservation for MBC is currently in force, an act providing internal reservation in the 20% without amending the 1994 Act is against the constitutional provisions. The court further noted that there are 25 Acts of Tamil Nadu in the 9th Schedule of the Constitution of India and 22 Acts are amending the Land Reform Acts. Every time, the Act in the Ninth Schedule was amended and the Amendment Acts have also been placed in the Ninth Schedule through Constitutional Amendment Acts under Article 368 of the Constitution. Therefore, the enactments similar to the impugned Act, without amending the Act under the 9th Schedule, is unconstitutional.
The power of legislative assembly to make reservation based on caste
The court held that it is settled law that reservation is permissible only for class of citizens and not on caste basis and is in violation of the Articles 15(4), 16(4) and 14 of the Constitution of India, besides legislative incompetency. It further held that micro classification is wholly arbitrary, because there is no acceptable reason for the division and no material or data to differentiate MBC(V) from other MBC as a separate class.
According to the judgment the act is violative of Articles 15, 16 and 29 of the Constitution of India as it discriminates only on caste and it also provides caste based reservation by treating one caste, viz., “Vanniakula Kshatriya” including 'Vanniyar', 'Vanniya', 'Vannia Gounder', 'Gounder' or 'Kander', 'Padayachi', 'Palli' and 'Agnikula Kshatriya', as separate class while treating the similar castes differently. The judgment states that by doing so, the State has discriminated between one caste having 6 sub-castes and 115 other castes, as it tried to give higher proportion of reservation to one caste and deprive the others.
The court found that none of the remaining 115 Communities were given separate reservation. The court held that reservation can only be on the basis of the community and not on the basis of the caste noting that it is settled position of law that caste alone cannot be the basis for any classification.
On reservation made without quantifiable date:
The court observed that that for considering 10.5% reservation for Vanniyar caste under Most Backward Community reservation, the Government has not considered the caste wise population and there is no data available with the Government to invoke the enabling provision in the Constitution to provide internal reservation. The court further noted that there was nothing on record to establish that the State Government had deliberations with the Communities who would be affected by the Act.
The Court further observed that the Commission constituted by the State Government for the purpose of collection of quantifiable data on castes, communities and Tribes of Tamil Nadu has not submitted their report to the Government till today. Given that the commission was constituted only in December 2020, the legislation came into effect within a span of 2 months time from the date of appointment of the said Commission.
The court noted the Government’s contention that it had introduced the Act, based on the recommendation of the Chairman of the Commission based on a letter given by him. When there is no consensus in giving recommendation to the Government for giving 10.5% reservation for the Vanniyar Community, the letter given by the Chairman of the Commission alone is not sufficient to provide internal reservation to the Vanniyar Community.
The court held that as per the report of the Sattanathan Commission, 1970, the population of Vanniyars is higher in North Districts and is very thin in the Southern Districts and hence if the reservation is given all over the State, it would prevent the other Most Backward Communities in getting admissions in the Educational Institutions and posts in the Government employments. The court further noted that in other areas the candidates from Vanniyars would automatically get selected in the Educational Institutions or in the Government employments without there being any competition.
(Case Title: A batch of petitions including V. Saminathan v. The Government Of Tamil Nadu And 4 Others.)
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