States Have No Power To 'Identify' Socially & Educationally Backward Classes After 102nd Amendment.

By U.Jayakrishnan( Advocate practising in the high court of Kerala.

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The Supreme Court while considering a couple of appeals filed against the challenging the common judgment of the High Court dated 27.06.2019 by which judgment several batches of writ petitions have been decided by the High Court in favour of the state of Maharashtra in a reservation matter. The Supreme court, referred the appeals to a larger Bench by order dated 09.09.2020, Hon’ble the Chief Justice of India has constituted a Constitution Bench before them those appeals and writ petitions were listed. This Constitution Bench after hearing learned counsel for the parties passed an order on 08.03.2021 issuing notice to all the States. The Bench by order further directed the States to file brief notes of their submissions.

Questions Framed to decide by the constitution bench were:

“1. Whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.?

2. Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case?

3. Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made 12 out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the 12 exceptions carved out in the judgment of Indra Sawhney?

4. Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?

5. Whether States power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India?

6. Whether Article 342A of the Constitution abrogates States power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy/structure of the Constitution of India?”

The constitution bench has unanimously upheld the constitutional validity of the Constitution (One Hundred and Second Amendment) Act, 2018, however, differed on the question of whether it affected the power of States to identify SEBC's or not.

The court held by 3:2 majority that the 102nd Constitution Amendment has abrogated the power of states to identify "Socially and Educationally Backward Classes(SEBCs)".

It was held that after the introduction of Articles 338B and 342A to the Constitution "the final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is firstly with the President, and thereafter, in case of modification or exclusion from the lists initially published, with the Parliament"

The majority judgement interpreted the 102 amendment as follows:

(i) By the introduction of Articles 366 (26C) and 342A through the 102nd Constitution of India, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution.

(ii) The states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published under Article 342A (1).

(iii) The reference to the Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all purposes of the Constitution, in relation to each state and in relation to every union territory. The use of the term "the Central List" is only to refer to the list prepared and published under Article 342A (1), and no other; it does not imply that the states have any manner of power to publish their list of SEBCs. Once published, under Article 342A (1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A (2). (iv) In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it. If the commission prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, under Article 342A (1), by reason of Article 367 read with Section 3 (8) (b) General Clauses Act).

(v) The states' power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 – except with respect to identification of SEBCs, remains undisturbed.

(vi) The Commission set up under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution.

(vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes 132 of the Central Government and central institutions, continue to operate. This direction is issued under Article 142 of the Constitution of India.

Justice Ashok Bhushan and S. Abdul Nazeer (minority) opined that the 102nd Constitutional amendment does not take away the power of the State to identify backward class in the State.

(29) We are of the view that the word 'Central' in Article 342A (2) was used for purpose and object. The use of 'Central' was only with the intent to limit the list issued by the President to Central services. It is a well-settled rule of interpretation that no word in a statute or Constitution is used without any purpose. Word 'Central' has to be given meaning and purpose.

(30) When we have interpreted Article 342A to mean that Article 342A refers to 'Central List' which is prepared for services under the Government of India and organisations under the Government of India, the definition given under Article 366(26C) which specifically refer to Article 342A has to be read together and list of backward classes which is not Central List shall not be governed by the definition under Article 366(26C). Since the (26C) has been inserted in the context of Article 342A, if the context is a list prepared by the State and it is State List, the definition under (26C) shall not govern.

(31) We, thus, hold that Article 342A was brought by Constitution 102nd Amendment to give constitutional status to National Backward Classes Commission and for publication of list by the President of socially and educationally backward classes which was to be Central List for governing employment under Government of India and the organisations under it.

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