Background

• In May, a five-judge constitution bench of the Supreme Court struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 which extended reservation to the Maratha community in public education and employment in excess of the ceiling limit of 50% fixed by the Supreme Court earlier.
• In the Indra Sawhney v Union of India judgement (1992), the nine-judge bench had ruled that only extraordinary circumstances would justify grant of reservation in excess of the 50% ceiling.
• In Indra Sawhney, the bench noted that Dr B.R. Ambedkar, chairman of the Constituent Assembly’s Drafting Committee, himself contemplated reservation being “confined to a minority of seats”. No other member of the Constituent Assembly suggested otherwise. 
• The five-judge bench found no extraordinary circumstances to grant reservation to the Maratha community over and above the 50% ceiling. 
• The bench also found that the M.G. Gaikwad Commission too did not articulate any exceptional circumstances to justify the excess quota. The commission’s report, which was submitted in 2018 to the state government, found that Marathas are socially, educationally and economically backward and eligible to be included as a backward class. 
• On the basis of the Gaikwad Commission report, the state legislature passed a Bill giving 16% reservation in government jobs and education to the Marathas over and above the ceiling limit fixed by the Supreme Court in Indra Sawhney.

Ruling on identifying backward classes

• In the judgment that declared the Maratha reservation unconstitutional, the 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?

• The Amendment established a National Commission for Backward Classes, a constitutional body, 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.
• 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. 
• 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?

• The apex court adopted a literal interpretation of the 102nd Amendment, holding that there was no ambiguity in its drafting that warranted a “purposive interpretation”. It 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.

Why in News?

• Lok Sabha has passed the Constitution (127th Amendment) Bill, 2021 which seeks to restore the states’ power to identify Other Backward Classes that are socially and economically backward. 
• The recent Supreme Court order in May 2021 had empowered only the Central government for such identification. 

Reference:

1. https://www.thehindu.com/news/national/lok-sabha-clears-bill-restoring-right-of-states-to-specify-obc-groups/article35841765.ece