Parliamentary Committee, Minister & AG Said 102nd Constitutional Amendment Won't Affect States' Power To Identify SEBCs; Supreme Court Holds Otherwise

An interesting aspect of the Supreme Court judgment in Maratha Quota case is its interpretation of 102nd Constitutional Amendment.The petitioners challenged the Amendment on the ground that it violated the federal structure by denuding the power of states to identify Socially and Economically Backward Classes. The Centre, through Attorney General, defended the Amendment contending that the intention of Constitutional Amendment was not to take away the State's power to identify the Backward Class, and that the State Government identification of Backward Class/Socially and Educationally Backward Classes is not touched by Article 342A.AG KK Venugopal submitted that the amendment dealt with 'central lists' and did not affect the power of States.The Attorney General, relied on Parliamentary Committee reports and speech given by the Minister in the Parliament, to drive home the point. On the other hand, the petitioners contended that Parliamentary Committee report and the speech of the Minister cannot be looked into for ascertaining the intention of Parliament in bringing the Amendment.Select Committee ReportThe report of the Select Committee included a clarification by the Ministry that the proposed amendment does not interfere with the powers of the State Governments to identify the Socially and Educationally Backward Classes. The existing powers of the State Backward Classes Commission would continue to be there even after the passage of the Constitution (One Hundred and Twenty-third Amendment) Bill, 2017, the report quoted the Minister. The Committee further observed that the amendments do not in any way affect the independence and functioning of State Backward Classes Commissions' and they will continue to exercise unhindered their powers of inclusion/exclusion of other backward classes with relation to State List."Minister's Clarification in ParliamentBefore the Parliament, responding to the apprehensions expressed by some members, the Minister Thawarchand Gehlot stated that 'right to include or remove in the States List concerned with OBCS will remain as it is and it will not be violated in any manner.' "Keeping in view the sentiments of Article 15 and 16, States have also exercised their powers pertaining to making schemes in the interest of OBC category and making provisions in this behalf and such power will remain as it is. We are not making any amendment in Article 15 and Article 16. It simply means that State Commissions will not be affected in any way by this Constitutional amendment. Maximum number of Hon'ble Members have shared their views expressing their fear on this point. I, sincerely want to make it clear that State Governments have right and will remain as it is in future as well. No attempt will be made to tamper with them", the Minister had stated. He had also added that 'the task of making the list of States is done by taking decision by the States Commission.Justice Ashok Bhushan judgment took note of Reports, SpeechesJustice Ashok Bhushan, in his judgment, took note of the above and observed that Parliamentary Committee reports including speech given by the Minister in the Parliament are relevant materials to ascertain the intention of Parliament while construing constitutional provisions. "It is, thus, clear as sun light that Parliamentary intention discernible from Select Committee report and statement of Minister of Social Justice and Empowerment is that the intention of the Parliament for bringing Constitutional amendment was not to take away the power of the State to identify backward class in the State.. When the Parliamentary intention is discernable and admissible as aid to statutory interpretation, we see no reason not to interpret Article 342A in manner as per the intention of the Parliament noticed above.", he said in concluding part of the judgment (Justice S. Abdul Nazeer concurred)Debates and statements cannot be conclusive about the terms of the changes brought about by an amendment to the ConstitutionJustice Ravindra Bhat, (with whom Justices L. Nageswara Rao and Hemant Gupta agreed with on this issue) approached this issue quite differently. According to him, the duty of the court always is to first interpret the text, and only if there is ambiguity in the meaning, to resort first to internal aids, before seeking external aids outside the text. "The polyvocality of parliamentary proceedings where the views expressed by Ministers or Parliamentarians may not be common or unanimous and the danger of attributing a particular intention to the terms of a statute, through the words of a Minister or other functionary which may be at odds with the plain words, cannot be lost sight of.", he observed.About the Select Committee report, Justice Bhat noted that none of the amendments proposed, expressly preserving the state power, were accepted by the Committee. "These materials show that there was on the one hand, an assumption that the changes ushered by the amendments would not ...

Parliamentary Committee, Minister & AG Said 102nd Constitutional Amendment Won't Affect States' Power To Identify SEBCs; Supreme Court Holds Otherwise

Ashok Kini

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