Case: PATTALI MAKKAL KATCHI Vs. A. MAYILERUMPERUMAL &amp; ORS

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 State of Kerala v. N.M Thomas (1976) 2 SCC 310 . 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 immaterial Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682 . 73. 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 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. 74. 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 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. VI. Non-compliance with Article 338-B(9) of the Constitution 75. 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 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 105th 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 States. However, the 2021 Act was brought into force prior to the 105th 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. Legislative competence can only be circumscribed by express prohibition contained in the Constitution itself M.P. Cement Manufacturers Association v. State of M. P. (2004) 2 SCC 249 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. 76. The consequence of disregarding a mandatory consultation 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. VII. Conclusion

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. The vires of Rule 3 of the Indian Passport Rules, 1950 and Section 3 of the Indian Passport Act (34 of 1920) fell for consideration before this Court in Abdul Rahim Ismail C. Rahimtoola (supra). An argument was advanced in that case that the matter should be referred to a Bench of five Judges as a constitutional question was raised. While referring to an earlier judgment of this Court in Ebrahim Vazir Mavat v. State of Bombay 1954 SCR 933, this Court held that the question of the impugned provision and rule being in violation of Articles 19(1)(d) and 19(1)(e) had already been decided by this Court and therefore, it cannot be said that any substantial question of law arises on the interpretation of a constitutional provision. The request for reference, was therefore, rejected.19. In Shrimanth Balasaheb Patil (supra), this Court refused to refer the dispute therein to a Constitution Bench on the ground that there was no substantial question of law as to the interpretation of the Constitution, the determination of which was necessary for the disposal of the case. This Court was of the opinion that the existence of substantial question of law does not weigh on the stakes involved in the case, rather, it is determined by the impact that the question would have on the final determination of the case.20. Article 145(3) of the Constitution provides that any case involving substantial question of law as to the interpretation of the Constitution should be heard by a minimum number of five Judges. However, we are not in agreement with the submission of Dr. Singhvi that the question of whether the 105th Amendment Act is clarificatory involves interpretation of the 105th Amendment Act.Article 31-B has been construed by this Court in The Godavari Sugar Mills Ltd. v. S. B. Kamble (1975) 1 SCC 696,  Shri Ram Ram Narain Medhi v. State of Bombay 1959 Supp (1) SCR 489, Sajjan Singh v. State of Rajasthan (1965) 1 SCR 933 , Ramanlal Gulab Chand Shah v. State of Gujarat (1969) 1 SCR 42 , State of Orissa v. Chandrasekhar Singh Bhoi (1969) 2 SCC 334  and State of Maharashtra v. Madhavrao Damodar Patil (1968) 3 SCR 712.  In view of the above judgments, which are discussed later, it is not necessary for this Court to refer these appeals to a larger Bench.23. The High Court observed that the majority opinion of this Court in Dr Jaishri Laxmanrao Patil v. Chief Minister (2021) 8 SCC 1  concluded that the powers of the State Legislatures to identify backward classes have been ousted and the power to modify the list of socially and educationally backward classes (SEBCs) stood vested in the Parliament, after insertion of Article 342-A in the Constitution by the 102nd Amendment Act. The High Court rejected the contention on behalf of the State that the 105th Amendment Act restored the power of the States to identify and notify backward classes. The High Court was of the view that the 2021 Act came into existence on 26.02.2021, whereas the 105th Amendment Act was enacted on 19.08.2021. Thus, according to the High Court, the impugned legislation, which was brought into effect prior to the enactment of the 105th Amendment Act, was unconstitutional in view of the majority opinion in Dr Jaishri Laxmanrao Patil (supra).28. On the issue of the 105th Amendment Act, we are unable to agree with the contention of the Appellants that the said amendment is clarificatory and dates back to the introduction of Article 342-A. The Respondents were right in submitting that the Parliament had expressly specified the retrospectivity of an amendment, whenever it intended to give any amendment retrospective effect. As such we do not intend to scrutinize the Statement of Objects and Reasons of and the parliamentary debates on the Constitution (One Hundredth and Twenty-seventh Amendment) Bill, 2021, as it is well established and also reiterated in the majority decision in Dr Jaishri Laxmanrao Patil that where provisions of a statute are ambiguous, the first attempt should be to find meaning in the statute itself, failing which the court may turn to external aids. We have not been called upon to interpret the 105th Amendment Act and nor do we find any vagueness as regards when the 105th Amendment Act has come into effect. The 105th Amendment Act cannot be said to be a validating amendment, as admittedly the 102nd Amendment Act has not been invalidated by this Court. We do not find it necessary to deal with the judgments cited by the Respondents on the impermissibility of clarification of a judgment of this Court by the Parliament, as even the Appellants do not contend that the 105th Amendment Act was made to clarify the judgment of this Court in Dr Jaishri Laxmanrao Patil (supra).29. Rule 350-A of the Rules framed by the Broach Borough Municipality, by which a rate on land was fixed at a percentage of the valuation based upon capital value, was declared ultra vires Section 73 of the Bombay Municipal Boroughs Act, 1925 in Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad (1964) 2 SCR 608.  The Legislature of Gujarat passed the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963, validating the rates so imposed. The said validating legislation was challenged before this Court in Shri Prithvi Cotton Mills Ltd. (supra). This Court was of the opinion that the defect pointed out by the judgment in Patel Gordhandas Hargovindas (supra), being that Section 73 had not authorised the levy of a tax but that of a rate, which had acquired a special meaning in legislative practice as held by this Court, was cured by the validating legislation. The Court upheld the validating statute on the ground that a new meaning to the expression rate was legislatively ascribed, thus putting out of action the effect of the decisions of the courts to the contrary. The Appellants cannot take aid of this judgment to argue that the 105th Amendment Act has to be given retrospective effect, since the 105th Amendment Act cannot be treated as a validating amendment as no part of the 102nd Amendment Act has been invalidated. The contention of the Appellants that the 105th Amendment Act, being an amendment relating to procedure, has to be construed as retrospective along the lines of K.S. Paripoornan (supra), is misconceived. Identifying certain communities which are to be deemed as SEBCs for the purposes of the Central Government and the States, respectively, cannot be said to be a matter of procedure. The procedural aspect of the 102nd Amendment Act and the 105th Amendment Act is only the manner of publication of the lists of SEBCs, whereas the substantive element of the said amendments is identifying and recognising certain communities as SEBCs. Thus, we see no force in the submission of the Appellants that the 105th Amendment Act is clarificatory in nature and has to be given retrospective effect from the date on which the 102nd Amendment Act came into effect.30. At the time of enactment of the 2021 Act, there is no doubt therefore, that the 102nd Amendment Act held force. The majority in Dr Jaishri Laxmanrao Patil (supra) was of the view that identification of SEBCs and their inclusion in a list to be published under Article 342-A can be done only by the President, after the insertion of Articles 366(26C) and 342-A. The list of SEBCs to be notified by the President under Article 342-A shall be the only list for the purposes of the Constitution. It was concluded in the said judgment that the change brought about by the 102nd Amendment Act, especially under Article 342-A, was only with respect to the process of identification of SEBCs and their list. It was categorically held that the power to frame policies and legislation with regard to all other matters, i.e., the welfare schemes for SEBCs, setting up of institutions, grants, scholarships, extent of reservation and special provisions under Articles 15(4), 15(5) and 16(4) are entirely with the State Government in relation to its institutions and its public services. It was further clarified that the extent of reservation, the kind of benefits, the quantum of scholarships, the number of schools which are to be specially provided under Article 15(4) or any other beneficial or welfare scheme conceivable under Article 15(4) can all be achieved by the State through its legislative and executive powers. Recognising that the President was yet to prepare and publish a list under Article 342-A(1), the Court held that a comprehensive list should be published expeditiously and in exercise of its powers under Article 142 of the Constitution, the Court directed till the time of the publication of such list, the SEBC lists prepared by the States would continue to be operative.31. Backward Classes, MBCs and DNCs have been identified for reservation in educational institutions and for public employment by G.O. Ms. No. 28 dated 19.07.1994 under the 1994 Act. 30 per cent reservation was provided for Backward Classes and 20 per cent for MBCs and DNCs together. The Vanniakula Kshatriya community has consistently featured in the list of MBCs since 1957 and was also included in the list of MBCs in G.O. Ms. No. 28 dated 19.07.1994, pursuant to the 1994 Act. By the 2021 Act, 10.5 per cent out of 20 per cent reservation for MBCs and DNCs was earmarked for the Vanniakula Kshatriya community. Identification of the Vanniakula Kshatriyas as a community within the MBCs was not the subject-matter of the 2021 Act, as this exercise had already been completed pursuant to the 1994 Act. Under the 2021 Act, sub-classification of the MBCs and DNCs and apportionment of a particular percentage of reservation is for the purpose of determining the extent of reservation for communities within the MBCs and DNCs, which is a permissible exercise of power by the State Government, according to the majority judgment in Dr. Jaishri Laxmanrao Patil (supra). 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. We are not in agreement with the contention of the Respondents that determining the extent of reservation for a community amongst the list of Most Backward Classes amounts to identification. In view thereof, the High Court has committed an error in holding that the 2021 Act is violative of Article 342-A.32. Placing reliance on the judgment of this Court in E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394,  the High Court held that all castes including the sub-castes, races, tribes mentioned in the list are to be members of one group for the purpose of the Constitution and cannot be further sub-divided so as to give more preference to a miniscule portion thereof. The High Court also observed that as per E.V. Chinnaiah (supra), all the castes included in the Schedule under Article 341 of the Constitution would be deemed to be one class of persons.35. The Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 was challenged before the High Court of Andhra Pradesh. 57 castes enumerated in the Presidential list of Scheduled Castes were categorised into four groups based on inter se backwardness and separate quotas were fixed in reservation for each of these groups by the State of Andhra Pradesh. A five-Judge Bench of the High Court by a majority of 4:1 dismissed the writ petitions. In E.V. Chinnaiah (supra), the main contention of the appellants therein before this Court was that the State lacked legislative competence in enacting the said legislation which, according to the appellants, was solely meant for subdividing or subgrouping the castes enumerated in the Presidential list, as under Article 341(2) bifurcation of the Presidential list can be done only by the Parliament. Alternatively, it was submitted that this subgrouping amounted to micro-classification of the Scheduled Castes, in violation of Article 14 of the Constitution. Three questions were framed by this Court in E.V. Chinnaiah (supra), as listed below:(1) Whether the impugned Act is violative of Article 341(2) of the Constitution of India?(2) Whether the impugned enactment is constitutionally invalid for lack of legislative competence?(3) Whether the impugned enactment creates subclassification or micro-classification of Scheduled Castes so as to violate Article 14 of the Constitution of India?36. In E.V. Chinnaiah (supra), this Court was of the opinion that Article 341 made it clear that the State, either by legislative or executive action, had no power of disturbing the Presidential list of Scheduled Castes and therefore, any executive or legislative act of the State which interferes, disturbs, rearranges, regroups or reclassifies various castes in the Presidential list is violative of Article 341 and the scheme of the Constitution. Further, it was held that castes identified by the President under Article 341 formed a class in themselves and any division of these classes based on any consideration would amount to tinkering with the Presidential list. As the primary object of the impugned enactment in that case was to create groups of sub-castes in the list of Scheduled Castes, this Court concluded that the State does not have legislative competence to divide the Scheduled Castes, by tracing its claim to Entry 41 of List II and Entry 25 of List III. Insofar as the contention of sub-classification of Scheduled Castes is concerned, this Court rejected the contention of the respondents therein that the ratio of Indra Sawhney (supra) applied to the facts of E.V. Chinnaiah (supra). It was pointed out that sub- classification dealt with by Indra Sawhney (supra) related only to Other Backward Classes and not Scheduled Castes as the judgment in Indra Sawhney (supra) itself had expressly held that subdivision of Other Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes, the reason for which, according to this Court in E.V. Chinnaiah (supra), was that the Constitution itself had kept the Lists of Scheduled Castes and Scheduled Tribes out of interference by the State Governments.37. A close scrutiny of E.V. Chinnaiah (supra) 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. E.V. Chinnaiah (supra) primarily relates to the power of the State legislature in categorising the Scheduled Castes identified under Article 341 into four groups, the effect of which was held to be modification of the Presidential list, which Article 341 precluded the States from doing. As was clearly expressed by this Court in E.V. Chinnaiah (supra), the issue of sub-classification of backward classes was dealt with in Indra Sawhney (supra) and it is pertinent for us to refer to the following paragraphs authored by Jeevan Reddy, J., after referring to observations of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka 1985 Supp SCC 714:802. We are of the opinion that there is no constitutional or legal bar to a State categorising the backward classes as backward and more backward. We are not saying that it ought to be done. We are concerned with the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us take the criteria evolved by Mandal Commission. Any caste, group or class which scored eleven or more points was treated as a backward class. Now, it is not as if all the several thousands of castes/groups/classes scored identical points. There may be some castes/groups/classes which have scored points between 20 to 22 and there may be some who have scored points between eleven and thirteen. It cannot reasonably be denied that there is no difference between these two sets of castes/groups/classes. To give an illustration, take two occupational groups viz., goldsmiths and vaddes (traditional stone-cutters in Andhra Pradesh) both included within Other Backward Classes. None can deny that goldsmiths are far less backward than vaddes. If both of them are grouped together and reservation provided, the inevitable result would be that goldsmiths would take away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make a categorisation even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them. Where to draw the line and how to effect the sub- classification is, however, a matter for the Commission and the State — and so long as it is reasonably done, the Court may not intervene. In this connection, reference may be made to the categorisation obtaining in Andhra Pradesh. The Backward Classes have been divided into four categories. Group A comprises Aboriginal tribes, Vimukta jatis, nomadic and semi- nomadic tribes etc. Group B comprises professional group like tappers, weavers, carpenters, ironsmiths, goldsmiths, kamsalins etc. Group C pertains to Scheduled Castes converts to Christianity and their progeny, while Group D comprises all other classes/communities/groups, which are not included in Groups A, B and C. The 25% vacancies reserved for backward classes are sub-divided between them in proportion to their respective population. This categorisation was justified in Balram [(1972) 1 SCC 660  : (1972) 3 SCR 247 ] . This is merely to show that even among backward classes, there can be a sub- classification on a reasonable basis.803. There is another way of looking at this issue. Article 16(4) recognises only one class viz., backward class of citizens. It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the expression backward class of citizens and that separate reservations can be provided in their favour. It is a well-accepted phenomenon throughout the country. What is the logic behind it? It is that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, OBCs will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. The same logic also warrants categorisation as between more backward and backward. We do not mean to say — we may reiterate — that this should be done. We are only saying that if a State chooses to do it, it is not impermissible in law.Sawant, J. was also of the opinion that sub-classification of backward and more backward classes would be permissible, provided that separate quotas are provided for each of them. It is crystal clear from the judgment of Indra Sawhney (supra) that backward classes can be sub-classified. Whether the sub- classification under the 2021 Act is reasonable will be addressed subsequently but no doubt can be entertained about the permissibility of sub-classification amongst backward classes.38. By drawing strength from E.V. Chinnaiah (supra), the High Court was of the firm view that there cannot be any sub- division of castes including sub-castes, races and tribes mentioned in the Presidential list. In E.V. Chinnaiah (supra), it was held that castes once included in the Presidential list form a class by themselves and any division of these classes or persons based on any consideration would amount to tinkering with the Presidential list. According to the plural opinion in Dr Jaishri Laxmanrao Patil (supra), the list of SEBCs with respect to States was to be notified by the President, after due consultation with the National Commission for Backward Classes under Article 342-A. Admittedly, this was not done till the time of enactment of the 2021 Act. As stated earlier, exercising powers under Article 142 of the Constitution, this Court in Dr Jaishri Laxmanrao Patil (supra) directed that till the publication of the list of SEBCs by the President, the SEBC lists prepared by the States would continue to hold the field. Thus, even on consideration of the law laid down in E.V. Chinnaiah (supra), it is clear from the above that 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. Therefore, the finding of the High Court in this regard is erroneous.39. The constitutionality of the 2021 Act was assessed by the High Court under Article 31-B of the Constitution. The High Court observed that a statute placed in the Ninth Schedule shall continue to be in force, till it is amended or repealed. In the present set of facts, the High Court was of the view that without amending the 1994 Act, which provides for undivided 20 per cent reservation to MBCs and DNCs together, the State lacked the legislative competence to provide internal reservation to one community from amongst that group of communities by way of a separate but similar legislation. Reference was drawn to amendments made by the State of Tamil Nadu to statutes placed in the Ninth Schedule, which were also included in the Ninth Schedule.43. Article 31-B prescribes that no statute placed in the Ninth Schedule shall be void on the ground that it is inconsistent with, takes away or abridges any right conferred under Part III of the Constitution. The statute placed in the Ninth Schedule shall continue in force, subject to the powers of the competent Legislature to repeal or amend it. According to this Court in Godavari Sugar Mills Ltd. (supra), the object of Article 31-B, which was inserted by the Constitution (First Amendment) Act, 1951, is to give a blanket protection to the acts and regulations specified in the Ninth Schedule and the provisions of those acts and regulations against any challenge to those acts, regulations or the provisions thereof on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution. The result is that howsoever violative of the fundamental rights may be the provisions of an act or regulation, once the act or regulation is specified in the Ninth Schedule it would not be liable to be struck down on that score. This immunity against the above challenge would be available notwithstanding any judgment, decree or order of any court or tribunal to the contrary. The effect of Article 31-B, however, is not to prevent challenge, to an enactment on the ground that it is beyond the legislative competence of the Legislature which enacted it. It is also plain from the language of the Article that the specification of an act or regulation would not prevent the competent legislature to repeal or amend it. This Court was of the further opinion that:16. The protection of Article 31B can also not be extended to a new provision inserted as a result of amendment on the ground that it is ancillary or incidental to the provisions to which protection has already been afforded by including them in the Ninth Schedule. Article 31B carves out a protected zone. It has inserted Ninth Schedule in the Constitution and gives immunity to the Acts, Regulations and provisions specified in the said schedule from being struck down on the ground of infringement of Fundamental Rights even though they are violative of such rights. Article 31B thus excludes the operation of Fundamental Rights in matters dealt with by those Acts, Regulations and provisions. Any provision which has the effect of making an inroad into the guarantee of Fundamental Rights in the very nature of things should be construed very strictly, and it would not, in our opinion, be permissible to widen the scope of such a provision or to extend the frontiers of the protected zone beyond what is warranted by the language of the provision. No Act, Regulation or provision would enjoy immunity and protection of Article 31B unless it is expressly made a part of the Ninth Schedule. The entitlement to protection being confined only to the Acts, Regulations and provisions mentioned in the Ninth Schedule, it cannot be extended to provisions which were not included in that schedule. This principle would hold good irrespective of the fact whether the provision to which entitlement to protection is sought to be extended deals with new substantive matters or whether it deals with matters which are incidental or ancillary to those already protected.While dealing with the findings of the High Court in the impugned judgment therein, made on the basis of an earlier decision of this Court in Ramanlal Gulab Chand Shah (supra), this Court in Godavari Sugar Mills (supra) observed that a legislation, which is incidental or ancillary to a statute protected under Article 31-B, can be assailed on the ground of inconsistency with Part III of the Constitution.44. In our view, 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 1994 Act. Classification of backward classes has been made by the 1994 Act, which was placed under the Ninth Schedule. It is clear from the judgments referred to above that the State has the power to amend or repeal a statute which has been placed under the Ninth Schedule. 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. Having scrutinised the above judgments on the objective of Article 31-B, we are unable to see how Article 31-B operates as a hurdle for the State to enact statutes on matters ancillary to the 1994 Act. Article 31-B does not place any fetter on the power of the State to legislate on such matters nor does it prescribe any mandatory requirement for such legislations to be included within the Ninth Schedule, as has been understood by the High Court. The consequence of the 2021 Act not being placed in the Ninth Schedule is that it can be assailed as being violative of the fundamental rights enshrined under Part III of the Constitution, which the Appellants have fairly admitted. It is worthwhile for us to reiterate the authoritative pronouncement of a five-Judge Bench of this Court in Maharaj Umeg Singh v. State of Bombay (1955) 2 SCR 164 , relevant portion of which is reproduced below:13. … The legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated in the Lists 2 and 3 of the Seventh Schedule to the Constitution. It was conceded on behalf of the petitioners that the topic of legislation which was covered by the impugned Act was well within List 2 of the said schedule and the vires of the impugned Act could not be challenged on that ground…As no express prohibition stems from Article 31-B on the powers of the State Legislature to legislate on matters incidental to statutes placed within the Ninth Schedule, we are not in agreement with the finding of the High Court that the State Legislature lacked legislative competence to enact the 2021 Act on account of Article 31-B.45. The 2021 Act determined the extent of reservation for communities which had already been identified and categorised by the 1994 Act. Assuming that the State Legislature carried out an amendment to the 1994 Act, the said amendment would not have received the protection under Article 31-B. The question that remains to be answered is whether the determination of internal reservation for already identified communities by a separate legislation can be said to be in conflict with the 1994 Act. This Court is of the considered view that detailing the extent of reservation for communities which have already been identified as MBCs and DNCs cannot be said to be contrary to the 1994 Act. The preamble of the 1994 Act states that in view of requests from various political parties and social forums representing backward classes to consider the ramifications of the judgment of this Court in Indra Sawhney, the State Government had decided that the existing level of 69 per cent reservation in admission to educational institutions in the State and services under the State shall be continued. Determination of extent of reservation for specific communities within the Backward Classes of citizens was not the subject matter of the 1994 Act.46. The conclusion of the High Court that determining the extent of reservation amongst the Backward Classes of citizens can be done only by amending the 1994 Act in view of Article 31-B is unsustainable. 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.49. Laws giving effect to the policy of the State towards securing principles laid down in clauses (b) and (c) of Article 39 of the Constitution are saved from challenge as being inconsistent with Articles 14 and 19 of the Constitution, as per Article 31-C. Where such law is made by the State Legislature, it shall not receive the benefit under Article 31-C unless it receives the assent of the President. The 1994 Act received the assent of the President as it was made for securing the Directive Principles under Article 38, clauses (b) and (c) of Article 39 and Article 46. The High Court proceeded to hold that the 2021 Act has varied the provisions of the 1994 Act, which could not have been done by the Governor.50. As already stated, the 2021 Act deals with matters which are incidental or ancillary to those contained in the 1994 Act and the State is competent to legislate on such matters. 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 Article 14 or Article 19. However, it cannot be said that the State cannot legislate on subject matters, ancillary to that of an earlier statute which has received the assent of the President, or that it is mandatory for the State Government to seek the assent of the President for a legislation which the State is otherwise competent to enact. In Indra Sawhney (supra), Jeevan Reddy, J., writing for himself and three other judges, conclusively clarified that Article 16(1) is a facet of Article 14 and just as Article 14 permits reasonable classification, so does Article 16(1), which means that appointment and / or posts can be reserved in favour of a class under clause (1) of Article 16. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. It was further noted that Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. Where the State finds it necessary – for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under clause (4) itself. Pandian, J. while tracing the legislative history of Article 15(4), observed that the object of Article 15(4), introduced by the Constitution (First Amendment) Act, 1951, was to bring Articles 15 and 29 in line with Articles 16(4), 46 and 340 and to make it constitutionally valid for the State to reserve seats for backward class of citizens, Scheduled Castes and Scheduled Tribes in public educational institutions as well as to make other special provisions as may be necessary for their advancement. From these observations and findings, it is clear that States are empowered to make reservation for backward classes under Articles 15(4) and 16(4). We see no force in the submissions of Mr. Vijayan, who attempted to convince this Court that the State Legislatures source of power for enacting the 2021 Act cannot be traced to any Entry in the Lists under the Seventh Schedule of the Constitution.51. As referenced while dealing with the competence of the State to enact the 2021 Act vis-à-vis Article 31-B, this Court in Maharaj Umeg Singh (supra) has unequivocally clarified that no fetter can be implied on the power of the State to legislate, unless it is expressly prohibited under the Constitution. Without any such express bar under Article 31-C, the States competence to enact the 2021 Act with the Governors assent cannot be faulted with nor can the State be compelled by the courts to reserve the 2021 Act for assent of the President. In view of our conclusion, we do not deem it necessary to deal with the judgments relied upon by the Appellants.52. Internal reservation of 10.5 per cent for the Vanniakula Kshatriyas was challenged by the writ petitioners before the High Court as being violative of Articles 14, 15 and 16 of the Constitution. Their contention, that internal reservation was only on the basis of caste which amounted to discrimination to the other communities, was accepted by the High Court.This Court in K.C. Vasanth Kumar (supra) defined and described caste as below:What then is a caste? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo Hierarchicus is expected to be the central and substantive element of the caste-system which differentiates it from other social systems. The concept of purity and impurity conceptualises the caste system…. There are four essential features of the caste-system which maintained its homo hierarchicus character: (1) hierarchy; (2) commensality; (3) restrictions on marriage; and (4) hereditary occupation. Most of the castes are endogamous groups. Inter-marriage between two groups is impermissible. But Pratilom marriages are not wholly known.In Indra Sawhney (supra), Jeevan Reddy, J. observed that caste is nothing but a social class — a socially homogeneous class. Jeevan Reddy, J. then proceeded to answer the question relating to identification of backward classes. He was of the considered view that there is no recognised method for identification of backward classes. He held that caste can be the starting point for identifying backward classes, and wherever they are found, the criteria evolved for determining backwardness can be applied to see whether they satisfy the criteria.54. It is clear from the above that caste can be the basis for providing reservation, but it cannot be the sole basis. At present we are concerned with sub-classification. As stated, it has been held in Indra Sawhney (supra) that there is no constitutional or legal bar to a State categorising backward classes as backward and more backward. In the present case, sub-classification for providing internal reservation to a particular community, i.e., the Vanniakula Kshatriyas, will also be governed by the same principle, namely, while caste can be the starting point for providing internal reservation, 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. We are not at present dealing with the inquiry of other factors relied on by the State Government to justify internal reservation for the Vanniakula Kshatriyas. We propose to deal with that point subsequently. At present, we have answered the question relating to caste being the starting basis for providing reservation and for sub-classification of backward classes so as to provide for internal reservation.55. According to the High Court, there was no quantifiable data available with the State of Tamil Nadu as on the date of enactment of the 2021 Act, which would support their exercise of enabling powers under Articles 15(4) and 16(4) of the Constitution. The High Court was of the view that sub- classification of MBCs and DNCs into three categories for apportionment of reservation under the 2021 Act has been done without any objective criteria and aside from the population figures of 1983, no data was available on (i) the degree of backwardness of the classes for sub-classification; (ii) inadequate representation of these sub-classes; and (iii) efficiency of the administration. Additionally, the High Court has relied on the judgments of this Court in Indra Sawhney (supra), Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC 396  and Dr Jaishri Laxmanrao Patil (supra) to hold that the 2021 Act, being an attempt to provide proportionate representation, is against the law laid down by this Court, as it is settled law that adequate representation is not proportionate representation. It was concluded by the High Court that sub-classification would be permissible only on the ground that a class is far far backward than the advanced sections of that class, however, the classification under the 2021 Act was not based on any intelligible differentia as there was nothing on record to show that the other 115 communities were more advanced than the Vanniakula Kshatriyas using any yardstick. Therefore, the classification was made only on the basis of caste, which is unsustainable in law.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 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.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. Balram (1972) 1 SCC 660  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 record B.K. Pavitra v. Union of India (2019) 16 SCC 129 . 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.63. 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 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. 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.64. 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 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 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.65. 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 data Ram Singh v. Union of India (2015) 4 SCC 497. 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 (Dr Jaishri Laxmanrao Patil (supra)). 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. 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.66. It is observed that the proportion of the population of the Vanniakula Kshatriyas to the total population of MBCs and DNCs, termed as the feasibility formula, was the sole criterion which was considered 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 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 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 inV. Narayana Rao v. State of A.P. [AIR 1987 AP 53  : 1987 Lab IC 152 : (1986) 2 Andh LT 258] , striking down the enhancement of reservation from 25% to 44% for OBCs. The 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 be sustained in view of the law laid down by this Court.68. We have referred to this data only to emphasize that the findings in the letter of Justice Thanikachalam had to be suitably supported by 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.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.70. 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.71. 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 invalid State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284. 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 Kathi Raning Rawat v. State of Saurashtra 1952 SCR 435.72. 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 State of Kerala v. N.M Thomas (1976) 2 SCC 310 . 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 immaterial Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682 .73. 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 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.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 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.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 105th 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 States. However, the 2021 Act was brought into force prior to the 105th 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. Legislative competence can only be circumscribed by express prohibition contained in the Constitution itself M.P. Cement Manufacturers Association v. State of M. P. (2004) 2 SCC 249  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.76. The consequence of disregarding a mandatory consultation 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.