Quota within quota: why did Supreme Court uphold Madras High Court’s judgment quashing separate reservation for Vanniars?

The percentage of population of Vanniakula Kshatriyas, proportionate to the total population of the Most Backward Classes and Denotified Communities, cannot be the sole criterion for providing internal reservation.

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ON Thursday, the Supreme Court bench of Justices L. Nageswara Rao and B.R. Gavai, upheld the judgment of the Madras High Court's Madurai bench, in the case of Pattali Makkal Katchi vs. A. Mayilerumperumal & Ors. The Madurai bench, in its judgment on November 1 last year, had declared as unconstitutional, 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.

What did the 2021 Act, enacted by the Tamil Nadu assembly, seek to achieve?

In Tamil Nadu, from 1990, 30 per cent reservation was provided for Backward Classes, 20 per cent for Most Backward Classes [MBCs] and Denotified Communities [DNCs], 18 per cent for Scheduled Castes [SCs], and one per cent for Scheduled Tribes, totalling 69 per cent. In 1994, the 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 was enacted in order to facilitate such reservations by the state government. In 2012, the Tamil Nadu Backward Classes Commission [TNBCC], led by Justice M.S. Janarthanam (retd.), had recommended internal reservation of 10.5 per cent for the Vanniakula Kshatriyas [VKs].

On February 24, 2021, a bill for special reservation within the 20 per cent reserved for MBCs and DNCs was placed before the assembly. On the same day, the bill was passed, and it received the assent of the Governor on February 26, 2021. Thus, internal reservation was provided as follows: 10.5 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. Part-MBC(V) consists of the VK community (Vanniar, 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 Part-MBC.

On what grounds did the Madurai bench of the High Court strike down the Act?

The Madurai bench held that the State legislature had no competence to enact the 2021 Act. Among other reasons, it held that the internal reservation made only on the basis of caste is violative of the Constitution. It also opined that there was no quantifiable data relating to population, socio-economic status and representation of the backward classes in the services.

Also read: Explainer: Why the Madras HC struck down the separate quota for Vanniyar caste in Tamil Nadu

Did the Supreme Court agree with all the grounds relied on by the Madurai bench of the High Court?

No. The Supreme Court bench disagreed with the Madurai bench's rationale that the state assembly lacked competence to enact the law. In particular, the Supreme Court found that the high court erred in relying upon Supreme Court's judgment in E.V. Chinnaiah (2004) to hold that sub-classification of backward classes is beyond the legislative competence of the state. E.V. Chinnaiah primarily related to the power of the state legislature in categorising the SCs identified under Article 341 of the Constitution into four groups.

The Supreme Court also differed from the High Court on whether the state was prohibited from identifying a caste as socially and educationally backward. The Supreme Court didn't agree that determining the extent of reservation for a community amongst the list of MBCs amounts to identification. Therefore, the high court had committed an error in holding the 2021 Act as violative of Article 342A of the Constitution, the Supreme Court held.

The Supreme Court agreed with the appellants that in Indra Sawhney (1992), the Supreme Court had made it clear that sub classification of backward classes is permissible. The respondents, however, contended that backward classes can be sub-divided into backward and more backward classes, but further differentiation of MBCs is not permissible as it would amount to micro-classification. No doubt can be entertained about the permissibility of sub-classification amongst backward classes, the Supreme Court ruled.

Also read: Treating Unequals as Equals:  Can SCs and STs be sub-categorised?

The Supreme Court held that the 2021 Act cannot be said to be suffering from the vice of lack of legislative competence, merely because it deals with matters associated with or ancillary to the 1993 Act. Classification of backward classes has been made by the 1993 Act, which was placed under the Ninth Schedule [NS] of the Constitution. The state has the power to amend or repeal a statute which has been placed under the NS. Any amendment made to a statute placed under the NS does not get protection under Article 31B unless the said amendment is also included in the NS.  Therefore, Article 31B is not a hurdle for the state to enact statutes on matters ancillary to the 1993 Act, the Supreme Court ruled.

It is for the state to decide whether a legislation, which is not repugnant to any law made by the Parliament on the same subject matter, should receive the assent of the President or not. If the assent of the President is not sought, the consequence is that the statute made by the state is susceptible to challenge as being violative of Articles 14 or 19, the Supreme Court held.

The state's competence to enact the 2021 Act with the Governor's assent cannot be faulted with nor can the state be compelled by the courts to reserve the 2021 Act for assent of the President, it added.

What then were the points of agreement between the Supreme Court and the Madras High Court?

It, however, agreed with the high court that the Tamil Nadu government erred in accepting the recommendation of the TNBCC in favour of the internal recommendation. The first recommendation was made by its chairman, Justice Janarthanam, who was in a minority, with the remaining six members of the Commission submitting a dissent note. On July 8, 2020, Justice M. Thanikachalam was appointed as its chairman. On December 21, 2020, another commission headed by Justice A. Kulasekaran was appointed for the collection of caste-wise quantifiable data.

Justice Thanikachalam recommended on February 22, 2021 the sub-categorization amongst the MBCs and DNCs based on the proportion of their population. The Supreme Court, however, found that Justice Thanikachalam, too, blindly relied on the recommendation of Justice Janarthanam, and did not bother to indicate the views of the remaining members of the Commission. Thus, finding no substantial basis for the classification of Vanniars as a class within the class, the Supreme Court agreed with the high court's reasoning that the Act violated Articles 14, 15 and 16 of the Constitution, by virtue of its classification being unreasonable.

Caste can be the basis for providing reservation, but it cannot be the sole basis, both the Madurai bench of the High Court and the Supreme Court held. It is incumbent on the state government to justify the reasonableness of the sub-classification and demonstrate that caste has not been the only basis.

The high court had found that there was nothing on record to show that the other 115 communities were more advanced than the VKs using any yardstick.

A majority of the members in the Justice Janarthanam commission mentioned that the data before them was outdated. They stressed the need for the collection of caste-wise data to enable them to give an opinion on internal reservation. The majority members expressed the inappropriateness of submitting the report in haste in 2012, just before the ensuing Parliamentary elections of 2014.

Justice Thanikachalam committed an error in brushing aside the opinion of the majority members on the ground that it was riddled with extraneous reasons. He blindly followed the recommendation of Justice Janarthanam by stating that his view is unassailable. The recommendation of internal reservation for the VKs is by way of a letter signed only by Justice Thanikachalam and does not enclose the views of the remaining members of the TNBCC. There is nothing in that letter to suggest that it has the backing of the remaining members, or at least, the approval of the majority, the Supreme Court found.

Providing internal reservation 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 VK community are unable to compete with the remaining communities within the MBCs and DNCs.

Justice Thanikachalam did not cite any data, the Supreme Court concluded. He relied on the population figures of VKs from 1985, from a report of the J.A. Ambasankar-led Backward Classes Commission. There was no contemporaneous data available to Justices Janarthanam or Thanikachalam on the basis of which internal reservation recommendations could be made, the Supreme Court pointed out.

The percentage of population of VKs, 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, the Supreme Court clarified.

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. There should be 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.

Classification sought to be made under the 2021 Act is unreasonable and, therefore, the Act is violative of Articles 14, 15 and 16, as there is no substantial basis for differentiating the VKs and granting them separate reservation, the Supreme Court reasoned.

Also read: The case for a caste-based census in India

What lies ahead?

The Supreme Court is yet to hear the challenges to the 69 per cent reservation in Tamil Nadu on the ground that it breaches the 50 per cent ceiling imposed by the Supreme Court. As the court has clarified that Thursday's verdict in this case will have no bearing on the merits of that case, the political class in Tamil Nadu need not be unduly worried about the impact of this verdict.

Doubtless, the state government will come under pressure to enact a new law to answer the grounds cited by the Supreme Court to uphold the verdict of the Madurai bench of the Madras High Court in this case. But the Supreme Court's verdict has been broadly welcomed by communities other than the VKs. Therefore, the state government is unlikely to rush with a fresh legislative initiative, without assessing its implications.