On 31 March 2022, the Supreme Court struck down the separate reservations provided for Vanniakula Kshatriyas (or Vanniyars) by Tamil Nadu. The Vanniyars are part of the Most Backward Classes (MBC) category, which along with Other Backward Classes (OBC) and Denotified Communities (DNC), comprise the backward classes in the State. In February 2021, the State passed an Act to further sub-classify these groups, splitting the 20% reservations for MBCs and DNCs between Vanniyars who got 10.5% and other groups who got 9.5% . It was this Act that was challenged at the Madras High Court and heard on appeal at the Supreme Court. The Court held that while the State had the competence to pass the Act, it did not meet the substantive criteria for justifying reservation policies. Good summaries of the judgment have been published by the Supreme Court Observer and LiveLaw. Below, I gather some thoughts on reading the judgment.
Constitution Benches
The State asked the Division Bench of the Court (2 judges) to refer the case to a Constitution Bench of 5 judges. Under Article 145(3), a ‘case involving a substantial question of law as to the interpretation of the Constitution’ must be heard by at least by 5 judges. One of the State’s arguments was based on the 105th Constitutional Amendment. Earlier, the 102nd Constitutional Amendment (2018) had been interpreted as taking away States’ power to recognise backward classes. The 105th Amendment was reversed that decision in August 2021. However, the Vanniyar Act was passed in February, when the State had no power of recognition. The State argued that the 105th Amendment should apply retrospectively, because it was a clarificatory amendment. Since deciding this involved an interpretation of the Constitution, the State argued a five-judge Bench should decide the case.
The Division Bench disagreed. They held that ‘there is no necessity of interpreting the 105th Amendment Act for the purpose of deciding the question […] relating to the retrospectivity of the said amendment.’ This is a surprising ground for the decision. While one may consider the two different- interpretation of the substance of the law answers what the law is, and the retrospective/prospective application answers when it is the law- a deeper look indicates that the question of retrospective application is one of interpretation. It must be gleaned from the text of the statute either explicitly, implicitly or when read with reference to its purpose, just like normal interpretation. The substance of the law may often inform whether it is retrospective, confusing the division between these two questions.
The Court’s reasoning should not have suggested a difference between these two. In future cases, this might prevent more important questions of retrospectivity being referred to Constitution Benches. Instead, the Court could have relied on the phrase ‘substantial’. The Court even cited Srimath Balasaheb Patil which states whether a question of law is substantial depends not on the stakes involved in a case, but on the impact it has on the determination of the case. As explained ahead, the Court essentially decided that the 102nd and 105th Amendments did not affect the dispute. This would mean its interpretation was not essential to the case. This is a more suitable ground for denying a Constitutional Bench reference.
Constitution Benches have become more sparse over time. During the pandemic, only 2 such Benches conducted substantive hearings, perhaps because of the congestion at the Court. This is a latent reason issues are not easily referred to Constitution Benches.
3 Powerless Years for States
As described above, the retrospective application of the 105th Amendment was at issue in the case. The Court held that unless the Amendment explicitly says so, it will not apply retrospectively (following the preference for literal interpretation from Jaishri Laxmanrao Patil). However, the Act was not invalid because Vanniyars, MBCs and DNCs were already recognised as backward classes. The Act only reallocated the quantum and structure of reservations which States had the power to do.
Regardless, the Court expressed its opinion on retrospectivity (strictly, this is not ratio or binding, but it is likely to be treated as such) which means any inclusions in the backward classes list by States between August 2018 and August 2021 are now invalid. There are not likely to be many, since the process is long, but Kerala for example had to pass an order for a second time. Other States in a similar situation may have to expend further political capital on this issue.
Standard of Review
As with other reservation cases, the standard of review for an Act continues to be elusive. In Indra Sawhney, the Court drawing correctly from the text of the Constitution states that the State must be subjectively satisfied. The test for this is based on Barium Chemicals. There, the Court clarifies it can check if there is data available for the State to form its opinion. It does not stop there. In U.S.V. Balram (an older case that continues to be applied), the Court states that the judiciary can scrutinise whether the conclusions arrived at are supported by the data and materials. The test for ‘subjective satisfaction’ includes elements of objective evaluation. The Court can review the substance of the evaluation. But the Court has also stressed deference to the legislature’s opinion. So, the question that arises is how much deference should be given and when can the Court interfere?
The current case provides no answer. Indra Sawhney suggested the standard of review was variable, but does not explain the factors relevant in deciding how it should vary. What remains is a jurisprudence that varies from case to case, going into the nature of the data, without a clear standard for why something should be rejected. References to reasonableness and arbitrariness indicate that what is at play is a rationality review, but the strength of scrutiny remains variable. While I do not wish to suggest that there should be a fixed standard without a closer look, there is definitely a need for some structure and certainty that might come from a court explicitly engaging with the question of what the standard should be and if it varies, then on what factors.
Reservation is Not Proportionate Representation
The main grounds for striking down the Vanniyar Act was that the Act was passed solely on the basis of population, and not comparative analysis of backwardness. Further, the population figures were from 1985 and antiquated.
The Janarthanam Commission reportedly considered the proportion of Vanniyars in the population (13%) and calculated a feasibility of 10.5% based on it. It then compared this to the representation of Vanniyars in public employment (8.5%) and higher education, which was slightly lower. So, the Chairman (writing alone as other members refused to make a recommendation without more data) suggested Vanniyars should get 10.5% separate reservation.
The Court refused this analysis as it was based solely on the ‘proportion of the population’. Article 16(4) for public employment uses the phrase ‘adequately represented’. While Article 15(4) for other reservations does not have such a similar phrase, the two Articles are often interchanged in jurisprudence (an issue worth its own analysis). Cases such as Indra Sawhney and Jaishri Laxmanrao Patil have stressed that adequacy and proportionate representation are different. However, exactly how adequacy should be measured is often not clear. In Jarnail Singh (2021), the Court said it is the State’s discretion to decide what is inadequate. But the current judgment makes it clear that population alone is not enough, something more is necessary.
What more is necessary? The judgment provides some indication, which might better be understood if we read it with the reasoning from Jaishri Laxmanrao Patil, in which Ashok Bhushan J (writing for the majority on this issue) described the purpose of reservations being to provide a ‘share in power‘. This share in power theory might inform why proportion of population which addresses representation instead is not a valid reason by itself. In the current judgment, the Court particularly points out that when creating sub-classifications, there ought to be analysis of relative backwardness and competition with groups in the same category. These factors indicate that the State must analyse whether the community is unable to get a fair share in power before providing specific reservations. This means that any data must not just enumerate the population, but consider backwardness.
Contemporary Data and the Caste Census
The case adds on to a list of cases that reiterate the need for data to not just support the conclusions for reservation, but to be contemporary (Jaishri Laxmanrao Patil most recently): the Court has stressed that the data should not be outdated.
Data collection, however, is not an easy exercise. When reservation policies require not just enumeration data but qualitative data, it becomes more time-consuming, complicated and expensive. The ideal scenario would be to club the exercise with the decennial census which collects data for Scheduled Castes and Scheduled Tribes anyway, along with various other parameters. The last time a full caste census was published was in 1931. This was attempted again in 2011, but apparently led to incredibly complex data that could be futile. The data was never published. Multiple States requested a new Caste Census in 2021. While the census has been delayed because of the pandemic and is likely to take place in late 2022/2023, it appears the Union has decided not to undertake a Caste Census.
The logistical difficulties faced in 2011 could be taken as a learning opportunity for a redo in 2022. Suggestions to make the task more feasible have been offered. Another reason might be the potential social unrest caused by the findings of a caste census. It will likely spur demands for reservation from various communities and potentially raise questions about the inclusion of some communities on the list. When Karnataka conducted a caste census in 2015 for the first time, it held to be a state secret and governments of various political parties have refused to release it till date. Leaked reports indicate that dominant castes in State politics are not as large a proportion of the population in the State as previously thought.
Despite these hurdles, the importance of a caste census cannot be understated even beyond the legal justification it will provide. It is vital for a rational revision of affirmative action policies of the State and will also provide invaluable information for the study of caste in the country. The goal of annihilating caste (which Bhushan J in Jaishri Laxmanrao Patil imagined as a casteless world without reservation) begins by recognising the inequalities it imposes today and addressing them with rational policy.
Some states have decided to conduct their own exercise. Tamil Nadu and Odisha are conducting a survey. Chhattisgarh is reportedly conducting a census. Maharashtra and Bihar are considering proposals for enumeration exercises. While these will help, data from a census across the country will be more reliable and robust in terms of the parameters it can collect, avoiding any sampling biases and taking into account inter-State migration patterns. It is also likely to cost less as part of the decennial exercise than as separate State-level exercises. While we may not get a national caste census for at least another 10 years, the State-level exercises will be closely watched for its results.
Mihir Rajamane 
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