NEWS  The Maratha reservation case shows that divesting States of the power to determine backwardness hits federalism.

CONTEXT         

• Recently the Supreme Court of India declared as unconstitutional a Maharashtra law which provided for reservation to the Maratha community in education and public employment in the State.
• Four judges of the five-judge Bench wrote separate opinions, from which three primary findings emanated:
  • First, the Court held that the Maratha community did not constitute a socially and educationally backward class.
  • Second, the judges noted that the law was in breach of a rule previously set by the Court disallowing reservations made in excess of 50% of the total available positions.
  • Third— the Court held that State governments had no independent power to declare a group as a backward class.

ISSUES WITH THE JUDGEMENT 

The latter two findings run sharply across values of equality and federalism, which the Court has long regarded as integral to India’s democracy.

Not from the Constitution

• The idea that reservations ought to be restricted to 50% does not stem from the Constitution.
• The text of Articles 16(4) and 15(4) which confer power on the government to make reservations contains no such limitation.
• Instead, the idea that reservations ought to be restricted to 50% does not stem from the Constitution but from the Supreme Court Judgement in the Indra Sawhney vs Union of India (1992) case. Hence the limit does not have constitutional backing.

Court stand on listings

• The Court presents a ruling on the power of State governments to declare groups as backward.
• Until now, the central government and each of the State governments produced separate lists declaring communities as socially and educationally backward.
• Following the Supreme Court’s judgment in Indra Sawhney, the determination of backward classes was made by the National Commission for the Backward Classes, at the level of the Centre, and by regional commissions at the level of the State governments.
• As a result, backward communities that were kept out of the central list were entitled to reservation at least for those posts and seats under the control of the State government.
• This division in power, which gave States autonomy to classify groups as backward, stood in contrast to the lists of Scheduled Castes and Scheduled Tribes.
• In the case of those lists, right from the Constitution’s inception, the power to prepare them vested solely with the Union government.
• But the Supreme Court has now held that this distinction no longer holds good.
• The 102nd Amendment (2018), which forms the basis for the Court’s ruling, granted constitutional status to the National Commission for Backward Classes.
• In addition, it introduced Article 342A, according to which the President of India may, after consultation with the State government, notify groups of persons within such a State who are deemed to be socially and educationally backward. Any such “Central List”, could only be altered by Parliament.
• Also it added article 366(26C) -“socially and educationally backward classes” is defined as “such backward classes as are so deemed under Article 342A for the purposes of this Constitution”.

Term and interpretations

• The recent interpretation of the 102nd Amendment is against “essence” of federalism, as it divests states of a power this critical, to classify groups as backward, entitling many communities to protection under Articles 15(4) and 16(4).
• Thus, the changes, as interpreted by the Court, directly impede the ability of States to secure a just social order.

CONCLUSION

• The Union government has already filed a petition to review the judgment insofar as it limits the power of State governments.
• Should the Court refuse the plea, it is imperative that Parliament amends the Constitution and grants to States an express power to determine backwardness, as any other result will offend the delicate balance at the heart of Indian federalism.

Reference:

1. https://www.thehindu.com/opinion/lead/interpretations-which-impede-a-just-social-order/article34600254.ece