Vanniyar Reservation Day #4: Bench Reserves JudgmentTamil Nadu’s Vanniyar Reservation
Justices Rao and Gavai continued hearing the challenge to the Vanniyar reservations in Tamil Nadu today. Pattali Makkal Katchi (PMK), the lead petitioner in the case and the State of Tamil Nadu have approached the SC challenging the Madras High Court Judgment that quashed the reservation policy.
Over three days of hearings so far, the Court completed hearing arguments from the State of Tamil Nadu and PMK. They argued that the Madras HC wrongly held that the State did not have powers to identify SEBCs. Further, the 105th Amendment was a clarificatory Amendment which retrospectively allowed Tamil Nadu to identify Vanniyar’s as a backward class. Then, arguments for respondents began.
Yesterday, Senior Advocate Gopal Shankarnarayanan argued that the Tamil Nadu was not competent to pass 2021 Act, as it was passed before the 105th Amendment. He argued that the 105th Amendment does not clarify, and ‘relate back’ to the 102nd Amendment. Further, as the 2021 Act was passed under the 102nd Amendment, for Vanniyars to be recognised as SEBCs, procedure under Article 342A have to be followed.
In a 2021 Act, the Tamil Nadu government provided 10.5% internal reservations in public employment and education to Vanniyars within the 20% seats reserved for Most Backward Classes (MBCs).
The 2021 Act was challenged by persons belonging to other MBCs before the Madras High Court. They claimed that the TN government did not have the power to pass the Act as it was enacted prior to the 105th Constitutional Amendment.
The MBCs further urged that this reservation within the MBC quota discriminated against them as there was no empirical data to support the Vanniyars’ claim to backwardness. The High Court declared the Act unconstitutional, accepting both arguments. An appeal was filed in the Supreme Court.
Mr. Sankarnarayanan argued that the 105th Amendment was not a clarification of the 102nd Amendment, as the Tamil Nadu government had suggested. Hence, it could not be related back to apply retrospectively. Mr. Sankarnarayanan argued that whenever Parliament intended for a constitutional amendment to apply retrospectively, it expressly stated so. Further he submitted that the SC had interpreted the 102nd Amendment in the Maratha Reservations case. The legislature was not competent to issue clarifications on the SC’s Judgment.
Assuming that the 105th Amendment could not be related back, Justice Rao asked Mr. Sankarnarayanan to address whether the Tamil Nadu government had the power to provide Vanniyar reservations under the 102nd Amendment. Justice Rao observed that Vanniyars had already been identified in 1994. Could it not be said that the Tamil Nadu government was only deciding the extent of reservation for the group through the 2021 Act?
Mr. Sankarnarayanan responded, stating that the 1994 Act provided for the identification of communities for reservation, but the identification itself was done through various notifications. The lists containing the identified communities became defunct when the 102nd Amendment was promulgated, according to Mr. Sankarnarayanan. He argued that the 102nd Amendment set out a new procedure for identifying communities in Article 342A. The Amendment did not expressly state that old lists would be retained. The Union government did not issue any notification re-adopting the old lists either. Accordingly, Mr. Sankarnarayanan argued that Vanniyars were unidentified as MBCs after the 102nd Amendment. The 2021 Act therefore did not merely define the extent of reservations. It identified Vanniyars as MBCs.
The Bench heard Senior Advocate Dr. Rajeev Dhavan next. Dr. Dhavan briefly argued that comments by individual ministers in parliamentary debates cannot be the sole basis to determine that the 105th Amendment was clarificatory. The intention must be clear from the text. He further submitted that the extent of reservations must be based on contemporaneous and reliable data. The Tamil Nadu government’s data was outdated and did not consider crucial factors such as the extent of discrimination and disadvantage of the class.
A battery of lawyers opposing the reservation moved swiftly in and out of the Court after lunch. The Bench was intent upon finishing final hearings by the end of the day. Guided by Rao J’s stern reminders to refrain from repeating previously made arguments, Senior Advocates Nagamuthu, S Vijayan, Colin Gonsalves, Prakash Reddy, Bala Subramanyam and Jaideep Gupta made brief submissions against the 2021 Act.
They elaborated on the evolution of Vanniyar reservations to argue that the 2021 Act was rushed and not based on contemporaneous and reliable data. Mr. Gonsalves submitted that in response to some RTIs, the government had acknowledged that Vanniyars were infact the most socially, politically and economically powerful group within the Most Backward Classes. The 2021 Act hence gave additional reservation to those who needed it least.
The State of Tamil Nadu and Pattali Makkal Katchi (PMK), in defence of the Vanniyar reservation, responded to these arguments in the last twenty minutes of the day. Dr. Abhishek Manu Singhvi submitted that clarificatory and substantive Amendments are distinct—Mr. Sankaranarayanan had collapsed them into one category. Clarificatory amendments like the 105th Amendment are automatically retrospective. An express statement noting that an Amendment will apply retrospectively is only required for substantive Amendments. The State government and PMK will file their detailed responses in writing to the Court.
The Bench reserved Judgment in this case.