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(iii) Whether the State Government had the power to take any decision with regard to Backward Classes in the teeth of the Constitutional provisions, more particularly, Article 338-B of the Constitution of India?

(iv) Whether the State has power to provide reservation based on caste?

(v) Whether reservation can be provided without any quantifiable data on population, socio educational status and representation of the backward classes in the services?

Article 338-B. National Commission for Backward Classes.-
(1) There shall be a Commission for the socially and educationally backward classes to be known as the National Commission for Backward Classes. xxx (9) The Union and every State Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes.

Provided that nothing in this clause shall apply for the purposes of clause (3) of article 342A.

24. It was contended on behalf of the State by Dr. Singhvi that the 2021 Act does not identify, exclude or include any community in relation to the list of backward classes. The said exercise was already done by G.O. Ms. No. 28 dated 19.07.1994 under the 1994 Act. What is instead sought to be done by the 2021 Act is sub-classification of the MBCs and allocation of 10.5 per cent reservation for the Vanniakula Kshatriya community within the 20 per cent earmarked for MBCs and DNCs, which is not barred to be undertaken by the State by virtue of the 102 nd Amendment Act. Though a writ petition challenging the 1994 Act is pending consideration, there has been no interim order staying the operation of the said legislation. He proceeded to submit that the 105th Amendment Act is essentially clarificatory in nature. After the judgment of this Court in Dr Jaishri Laxmanrao Patil (supra), the Parliament, in exercise of its constituent power, recognised the imminent need of clarification of Articles 338-B, 342-A and 366(26C) of the Constitution and sought to make amendments to reflect what, according to Dr. Singhvi, was always the intention behind these provisions, i.e., 21 | P a g e for the States to continue to hold and exercise the power of identification of backward classes for reservation to educational institutions and services under the States. To emphasize this claim, Dr. Singhvi took the Court through the Statement of Objects and Reasons of the 105 th Amendment Act as well as some of the debates and speeches in both houses of the Parliament on the Constitution (One Hundredth and Twenty- seventh Amendment) Bill, 2021. He further sought to impress upon this Court that the only real and operative change brought about by the 105th Amendment Act is the addition of clause (3) to Article 342-A, which is essentially a procedural requirement on a State / Union Territory to prepare and maintain a list of SEBCs for its own purposes. He relied upon the judgment of this Court in K.S. Paripoornan v. State of Kerala 15 to assert that the 105th Amendment Act, being a clarificatory amendment dealing predominantly with procedure and not a substantive amendment, will have retrospective affect. Further, support was sought from this Court’s judgment in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality 16 to plead that while undoubtedly the Parliament had the power to enact both the 102nd Constitution Amendment Act and the 105th Constitution Amendment Act, the latter sought to clarify the circumstances 15 (1994) 5 SCC 593 16 (1969) 2 SCC 283 22 | P a g e which gave rise to the Court’s interpretation of the former and would, thus, be retrospective.

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 80 | P a g e the SEBCs. A proviso was inserted by the 105 th 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 81 | P a g e prohibition contained in the Constitution itself 48 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.