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EWS & Maratha Reservation: Consecutive Constitution Amendments Comes Under SC Constitution Bench's Scrutiny

LIVELAW NEWS NETWORK
12 Sep 2020 3:56 AM GMT
EWS & Maratha Reservation: Consecutive Constitution Amendments Comes Under SC Constitution Benchs Scrutiny
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The impacts of two consecutive Constitutional Amendments [102nd and 103rd] have come under the scrutiny of the Constitution Bench of the Supreme Court in cases related to reservation.

National Commission for Backward Classes [102nd Amendment]

The Constitution (One Hundred and Second Amendment) Act, 2018 came into effect on 11.8.2018. Article 338B was inserted constituting a National Commission for Backward Classes.
In State of Punjab v. Davinder Singh, the Constitution Bench headed by Justice Arun Mishra observed that the decision E.V.Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, wherein it was held that all the castes in the Presidential Order under Article 341(1) of the Constitution formed one class of homogeneous group and the same could not be further sub divided, needs a revisit.
In its judgment referring the issue to larger bench, the Court noted that 102nd amendment has a bearing on the issue of permissibility of sub-classification of Scheduled Caste and Scheduled Tribe by the states. "
The question of immense public importance arises in view of the insertion of Article 342A. When we consider Indra Sawhney, permitting such classification of socially and educationally backward class, and provisions of Articles 341, 342, and 342A are pari materia, the Court is required to have a fresh look on the decision rendered in E.V. Chinnaiah. In the spirit of constitutional provisions, the question is required to be re­examined authoritatively by this Court being of immense public importance. Thus, the case is required to be heard by a larger Bench than the one which decided E.V. Chinnaia
h.", the Court had observed while referring the matter to larger bench.

In Jaishri Laxmanrao Patil vs The Chief Minister, a three judge Bench stayed the operation of the law enacted by the State of Maharashtra introducing Maratha Quota for admission in Educational Institutions and for appointments in the Public Services and posts, and has referred the issue to a Constitution Bench of 5 Judges as it involves interpretation of of the Constitution (102nd Amendment) Act, 2018. One of the issues that was considered by the High Court at the instance of the writ petitioners is whether the Constitution (102nd Amendment) Act, 2018 affects the competence of the State Legislature to declare a particular caste to be a socially and educationally backward class. Though the High Court negatived this contention, the three judge bench observed that there is no authoritative pronouncement on the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018. "As the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these Appeals are referred to a larger Bench.", the Court said.

EWS Reservation [103rd Amendment]

The Constitution (103rd Amendment) Act, 2019 introduced provision for reservation to Economically Weaker Sections (EWS). Article 15(6), inserted vide this amendment, enables State to make special provisions for advancement of any economically weaker section of citizens, including reservations in educational institutions. It states that such reservation can be made in any educational institution, including private institutions, whether aided or unaided, except minority educational institutions covered under Article 30(1). It further states that the upper limit of the reservation will be ten percent, which will be in addition to the existing reservations. Article 16(6), enables State to make provision for reservation in appointments, in addition to the existing reservations, subject to a maximum of ten percent.

A three judge bench headed by CJI Bobde, on 5th August 2020, decided to refer to Constitution Bench the petitions challenging the validity of Constitution 103rd Amendment. The bench said that the contention of the centre that 50% ceiling rule will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections, is a substantial question of law to be examined by a Bench of five Judges. Another substantial question referred was whether the Amendment violates the basic structure of the Constitution, by applying the tests of 'width' and 'identity' with reference to equality provisions of the Constitution?

Last five years [2015-2020] saw six constitutional amendments. Out of this, the Supreme Court has, till now, dealt with four amendments including the one which it struck down.

NJAC [99th Amendment]

The Constitution (Ninety-ninth Amendment) Act, 2014, introduced the National Judicial Appointments Commission to replace the collegium system for appointment of judges. The Amendment Act had come into force on 13th April, 2015. After about six months, the Constitution Bench of the Supreme Court, on 16th October 2015, by 4:1 majority, struck down this amendment observing that supremacy of judiciary in the matter of judges appointment is necessary to preserve judicial independence.

Territory Swapping [100th Amendment]

The Constitution was amended for the 100th time [Constitution (Hundredth Amendment) Act, 2014] to give effect to the acquiring of territories by India and transfer of certain territories to Bangladesh in pursuance of the agreement and its protocol entered into between the Governments of India and Bangladesh. This amendment has not yet been considered by the Court in any case.

GST [101st Amendment]

The 101st Constitutional Amendment was for introducing the Goods and Service Tax. In October 2018, the Supreme Court upheld the Constitutional validity of Goods And Services Tax (Compensation To States) Act, 2017, as well as the Goods and Services Tax Compensation Cess Rules, 2017, as framed under the Act. The Court noticed that the 101st amendment empowers the Parliament to provide for compensation to the states for loss of revenue arising on account of implementation of the goods and services tax, "by law", on the recommendation of the Goods and Services Tax Council.

Abolition Of Reservation For Anglo Indian Community In Legislatures [104th Amendment]

The Constitution (104th Amendment) Act, 2019 extended the reservation of seats for SCs and STs in the Lok Sabha and states assemblies by ten more years. It also abolished the reserved seats for the Anglo-Indian community in the Lok Sabha and state assemblies. This amendment is not yet challenged before the Apex Court.













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