Four days ago, in the Maratha reservation case, the Supreme Court of India (SC) passed a ruling on another important matter — the 102nd Constitutional Amendment Act (CAA) which concerns itself with socially and educationally backward classes (SEBC).
Under the Indian Constitution, apart from Scheduled Castes (SC) and Scheduled Tribes (ST), the government can also provide reservation benefits to the SEBC (although reservation cannot be claimed as a matter of right, the Supreme Court has held in Indra Sawhney case).
Under this provision, the Union as well as State governments provide reservation to various groups categorised as OBC, MBC etc.
The 102nd Amendment
The Amendment Act passed in 2018 establishes a National Commission for Backward Classes (NCBC), at par with similar commissions for SC and ST, by adding Article 338B to the Constitution.
Previously, the commission was only a statutory body with limited functions. After the 102nd CAA, the responsibilities of the five-member Commission include:
monitoring safeguards provided for socially and educationally backward classes
giving advice on their socio-economic development
inquiring into complaints and making recommendations
to be consulted by the union and the state governments on all policy matters concerning the SEBCs (including inclusion and exclusion in the list).
Apart from this, the amendment also added Article 342A which states that the President may specify the SEBCs in the various States and Union Territories in consultation with the Governor of the respective State (Governor’s recommendation would be as advised to him by the State government. However, Governor can also exercise discretion).
Once this ‘Central List’ is notified, the President cannot edit it further. Only Parliament, through a law, can include or exclude groups in the list. This is the same as the provisions concerning the lists of SC and ST.
Apart from this, it was added to the Constitution that ‘SEBCs’ refer to such backward classes as deemed so under Article 342A (the list made by the government).
Many groups across India like Jat, Gujjar, Patidar, Maratha have been demanding reservations under the SEBC. The government hands are tied in the matter by the guidelines laid down by the Supreme Court through its various judgements, especially in the Indra Sawhney case.
The reservation for the Maratha community was challenged in the Bombay High Court on various grounds, one of them being the 102nd CAA — it was argued that the Maratha quota was unconstitutional because after the amendment, the State legislature had no power to identify any new backward class.
In a separate case, a writ petition was filed in the Supreme Court accusing the 102nd CAA of violating the federal structure by depriving the States of their powers to identify groups as SEBCs.
The Union government in response said that the Amendment’s intent was only to create a Central List that would be applied only in the Central government and its institutions. It had nothing to do with the State Lists of backward classes or the State governments’ powers to declare a community backward.
Despite union government’s argument that it was never its intention to deprive State governments of their power to identify SEBCs, the Supreme Court interpreted the text of the 102nd CAA to the contrary.
The court held, by a 3:2 majority, that after the passage of the 102nd CAA in 2018, the States do not have any power to identify SEBC classes, and only the President can publish a list of backward classes in relation to each State and that only Parliament can make inclusions or exclusions in it.
The main reasons cited by the court:
The text was clear that the President alone could notify the list, and subsequent changes could be made only by Parliament by law.
The provision was identical to that for SCs, which shows that the Parliament intended to “replicate” the same process for backward classes too.
A definition clause was added that clearly stated that only a class found in the list notified by the President under Article 342A was an SEBC.
The definition of SEBC was for “the purposes of the Constitution”, which meant that it was to apply to the Constitution as a whole, including Article 15(4) and Article 16(4) (pertaining to reservation), which are also implemented by the States.
Deliberations before a Rajya Sabha Select Committee showed that the Centre had rejected suggestions that a specific clause be added saying that States would continue to have the power to identify SEBCs.
The Supreme Court has directed the Centre to notify the list of SEBCs for each State and Union territory, and until it is done, the present State Lists may continue to be in use.
The impact of the ruling is far-reaching. From a political perspective, most of the groups demanding reservation currently constitute dominant groups in their respective states with significant power over electoral outcomes.
While the court didn’t mention it, one consideration behind the ruling might have been arresting the demand and grant of quota by the state governments under political pressure to groups which are not as backward.
A streamlined process of recognising the groups at union level would minimise exclusion and inclusion errors.
Nonetheless, the ruling takes away a significant power from the hands of the State governments, raising their eyebrows. Since the Union government has expressed no intention to usurp this power of the States, it may follow up with another amendment to clearly specify it in the Constitution.
Or, the States and Centre may come to a different compromise. For example, some members of the Select Committee recommended that it must be mandatory for the President to obtain the Governor’s consent in such cases; and that the advice of the NCBC on inclusion and exclusion of castes from the list of backward classes should be binding on the government.
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