102^nd Amendment Act and its issues

Introduction

• In the judgment that declared the Maratha reservation unconstitutional, a Constitution Bench of the Supreme Court dealt with another issue.
• By a 3:2 majority, it ruled that after the passage of the 102nd Constitution Amendment Act in 2018, the States do not have any power to identify ‘socially and educationally backward’ (SEBC) classes.
• The Union government argued that it was never its intention to deprive State governments of their power to identify SEBCs, but the Court interpreted the bare text of the Amendment to the effect that 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.

What does the 102nd Amendment say?

NCBC:

• The Amendment established a National Commission for Backward Classes by adding Article 338B to the Constitution.
• The five-member Commission was tasked with:
  • Monitoring safeguards provided for socially and educationally backward classes,
  • Giving advice on their socio-economic development,
  • Inquiring into complaints and making recommendations, among other functions.
  • Significantly, it was laid down that the Centre and the States shall consult the Commission on all policy matters concerning the SEBCs.

Article 342A

• The Amendment also added Article 342A, under which the President shall notify a list of SEBCs in relation to each State and Union Territory, in consultation with Governors of the respective States.
• Once this ‘Central List’ is notified, only Parliament could make inclusions or exclusions in the list by law.
• This provision is drafted in exactly the same word as the one concerning the lists of Scheduled Castes and Scheduled Tribes.

Definition of SEBC

• Further, a definition of ‘SEBCs’ was added to the Constitution — ‘SEBC’ means “such backward classes as are so deemed under Article 342A for the purposes of this Constitution”.

Why did this Amendment come up for judicial interpretation?

• The reservation for the Maratha community was challenged in the Bombay High Court on various grounds.
• One of the grounds was that the Act creating the Maratha quota through a new category called ‘SEBC’ was unconstitutional because after the introduction of the 102nd Amendment, the State legislature had no power to identify any new backward class.
• Separately, a writ petition was also filed in the Supreme Court questioning the validity of the Amendment as it violated the federal structure and deprived the States of their powers.
• In this context, the court had to examine the validity of the Amendment.

What were the rival contentions?

• The crux of the issue was whether the State government’s role in identifying backward classes had been denuded by the Amendment.
• The Union government said Parliament’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.
• Those who questioned it contended that the effect of the Amendment was that only the President, or the Union government, was authorised to make a list in relation to each State, and thereafter, any change in it would be made only by Parliament.

How did the Supreme Court reach these conclusions?

• Justice S. Ravindra Bhat, with two others concurring with him, adopted a literal interpretation of the 102nd Amendment, holding that there was no ambiguity in its drafting that warranted a “purposive interpretation”.
• Writing for them, Justice Bhat cited three main reasons.
  • One, the text was clear that the President alone could notify the list, and subsequent changes could be made only by Parliament by law.
  • Two, the text was identical to the provisions governing the National Commission for Scheduled Castes and the procedure to identify SCs was exactly the same, which led to the conclusion that Parliament intended to “replicate” the same process for backward classes, too.
  • Third, a definition clause was added to the effect that only a class found in the list notified by the President under Article 342A was an SEBC.
    • Further, the definition 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), which enable special provisions for backward classes, including reservation in public services, and are also implemented by the States.
• The Supreme Court’s judgment also drew on deliberations before a Rajya Sabha Select Committee that showed that the Centre had rejected suggestions from members who demanded that a specific clause be added saying that States would continue to have the power to identify SEBCs.
• Justice Ashok Bhushan, with another judge agreeing with him and constituting the minority on this point, accepted the Union government’s position that it was never its intention to deprive the States of their powers.
• They held that the ‘Central List’ was only for use by the Centre in reservations for jobs and institutions under the Union government, and will not apply to States.

What next?

• 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 Centre may either comply with this or seek to further amend the Constitution to clarify the position that the 102nd Amendment was not intended to denude the States of their power to identify SEBCs.