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BREAKING : Centre Introduces Constitutional Amendment Bill To Restore States' Power To Identify SEBCs

LIVELAW NEWS NETWORK
9 Aug 2021 9:25 AM GMT
BREAKING : Centre Introduces Constitutional Amendment Bill To Restore States Power To Identify SEBCs
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The Central Government introduced in the Lok Sabha today the Constitution (One hundredth and twenty seventh amendment) Bill 2021 to restore the power of State Governments to identify and specify Socially and Economically Backward Classes(SEBCs), which was lost after Supreme Court's 3:2 judgment in the Maratha quota case.In the said case, a Constitution Bench of the Supreme Court had held by...

The Central Government introduced in the Lok Sabha today the Constitution (One hundredth and twenty seventh amendment) Bill 2021 to restore the power of State Governments to identify and specify Socially and Economically Backward Classes(SEBCs), which was lost after Supreme Court's 3:2 judgment in the Maratha quota case.

In the said case, a Constitution Bench of the Supreme Court had held by 3:2 majority that States lacked power to identify and specify SEBCs after the 102nd Constitutional Amendment, and that such power was with the President of India. Notably, the Supreme Court's majority verdict was against the stand taken by the Union Government that the 102nd Constitutional Amendment did not affect the power of the states. The review petition filed by the Union Government seeking a review of the judicial interpretation given to the 102nd amendment was also dismissed.

Following that, the Centre has now introduced this bill. The bill proposes to amend Article 342A to state that the power of the President is to specify the socially and educationally backward classes in the Central List  for the purposes of the Central Government. This is in line with the argument made by the Attorney General for India in the Maratha quota case that the power of President is only to specify SEBCs for the purposes of Central List.

The amendment also proposes to add clause (3) to Article 342A, which clarify that states and union territories will have the power to identify and specify SEBCs for their own purposes and that such list may differ from the Central list.

The proposed clause reads as :

"Notwithstanding anything contained in clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List".

The Centre said that this clarification was necessary to maintain the "federal structure" of the country.

"In order to adequately clarify that the State Government and Union territories are  empowered to prepare and maintain their own State List/ Union territory List of SEBCs and with a view to maintain the federal structure of this country, there is a need to amend article 342A and make consequential amendments in articles 338B and 366 of the Constitution", the statement of objects and reasons of the bill stated.

Last week, the Kerala High Court had stayed a Government Order issued by the State Government to include Christian Nadars in SEBC list, citing the Supreme Court's judgment.

No discussion took place over the Bill today in the Lok Sabha as the proceedings got adjourned in view of the opposition protests on the Pegasus issue.

About the judgment :

On May 5, a constitution bench of the Supreme Court, while dealing with the constitutionality of Maratha quota, had by 3:2 majority held that after the 102nd Constitution Amendment, only the President has the power to notify SEBCs, and that the power of states was only to make recommendations. While Justices L Nageswara Rao, Hemant Gupta and S Ravindra Bhat were on the majority on this point, the minority comprising Justices Ashok Bhushan and S Abdul Nazeer held that the effect of the amendment was only related to the power of Centre to identify SEBCs for the central list.

Interestingly, the stand taken by the Union Government in the case, as expressed by the Attorney General for India KK Venugopal, was that the amendment will not affect the power of states.

It is also interesting to note that the Parliamentary Committee and the Union Minister who introduced the amendment bill had unequivocally said that the amendment will not have any impact on the power of States to identify SEBCs.

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

However, the majority judgment 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 Constitution (One Hundred and Second Amendment) Act, 2018, introduced Article 338B which provides for a Commission for the socially and educationally backward classes to be known as the National Commission for Backward Classes. Further, as per Article 342A, President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be.
Justice Ravindra Bhat, who wrote the lead judgment for the majority, observed as follows :

"Parliament, through the 102ndAmendment clearly intended that the existing legal regime for identification of communities as SCs and STs and for their inclusion in the list of SCs and STs under Articles 341 and 342, which had hitherto existed, ought to be replicated in relation to identification of SEBCs"

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

" We are of the view that 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 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.

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 list prepared by the State and it is State List, definition under (26C) shall not govern.

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", the minority judgment held.

Click here to read/download the bill










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