Retain States' Power To Identify SEBCs : Centre Seeks Review Of Supreme Court's Interpretation Of 102nd Constitution Amendment

The Central Government has filed a review petition against the 5-judge bench judgment of the Supreme Court which held that the 102nd Constitution Amendment abrogated the power of State Governments to identify and notify Socially and Economically Backward Classes (SEBCs).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 OtherwiseHowever, 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" The majority judgment interprets the 102nd Amendment as follows: (i) By introduction of Articles 366 (26C) and 342A through the 102nd Constitution of India, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution. (ii) The states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published under Article 342A (1). (iii) The reference to the Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all purposes of the Constitution, in relation to each state and in relation to every union territory. The use of the term "the Central List" is only to refer to the list prepared and published under Article 342A (1), and no other; it does not imply that the states have any manner of power to publish their list of SEBCs. Once published, under Article 342A (1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A (2). (iv) In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it. If the commission prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, under Article 342A (1), by reason of Article 367 read with Section 3 (8) (b) General Clauses Act). (v) The states' power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other...

Retain States' Power To Identify SEBCs : Centre Seeks Review Of Supreme Court's Interpretation Of 102nd Constitution Amendment

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