Political leaders cutting across party lines have expressed concern over the Supreme Court’s interpretation of the 102nd Constitutional amendment in its order on Wednesday striking down the Maharashtra government’s quota for Marathas. With the Court interpreting it to mean that only the President (that is, the Centre) can decide the list of Socially and Economically Backward Classes (SEBCs), the parties have sought a review so as to retain the states’ powers in this regard.
“All states should ask for a review of this judgment. It’s wrong to take away the rights of states in deciding their own backward communities. The Supreme Court should set up a special Bench to look into a review,” BJP leader Ganesh Singh, the chairman of the Parliamentary Committee on Welfare of Other Backward Classes, told The Indian Express.
In a majority verdict, a five-judge Constitution Bench declared Wednesday that only the President can decide on terming a community SEBC for the purposes of reservation. While it upheld the 102nd amendment that gave special powers to the National Commission on Backward Classes (NCBC), it said states can only make suggestions for inclusion of a community in the SEBC list.
Interestingly, at the time the 102nd Constitutional amendment Bill was passed, in 2018, the Modi government and BJP had insisted that it would not take away any powers of the state. In March, when the Supreme Court had sought responses from state governments on the question of interpretation of the 102nd amendment, senior BJP leader Bhupender Yadav had repeated this to The Indian Express, saying the change was meant just to give “special powers” to the NCBC and not to take away powers of states. On Thursday, Yadav, who headed the Select Committee on the Constitutional amendment Bill, said he was studying the Supreme Court order.
In its report to the Rajya Sabha on July 19, 2017, the Select Committee had said, “This Constitutional amendment does not affect or alter in any way the present powers or functions of the State Backward Classes Commissions, and their powers for exclusion or inclusion of backward classes in the State Backward Classes list shall remain unchanged.”
K C Tyagi, a senior leader of BJP ally JD(U), said the Supreme Court’s order could spread “anarchy”. “A number of states have given reservations beyond 50%. People are already enjoying the benefits. At this time, such a decision could spread anarchy… In this pandemic time, no party or group can hold dharna or protests, so the Centre should announce another mechanism to go around it… The Central government cannot ignore weaker sections of society,” he said.
The JD(U) has always supported states deciding which communities should be added to the SEBC list.
Tyagi added that Maharashtra should have argued the case more fiercely to protect its rights. “I think there was some issue in the way the state handled the case.”
The Maharashtra government had passed the Bill giving 16% reservation to Marathas in jobs and education, by including them as an SEBC, in November 2018. This took the total quota in the state above the 50% ceiling set by the Court in its 1992 Indra Sawhney (Mandal) judgment.
With the Congress part of the ruling coalition in Maharashtra, senior leader M Veerappa Moily admitted there could have been some lapses on part of the state government. “You need to conduct a socio-economic educational survey and prove from the data and statistics that they (the community for which reservation is sought) come within the criteria and are backward. So unless some criteria is laid down… straightaway passing a legislation is not going to help. I think they have not gone through that,” he said.
Moily, a former Union law minister, added that while the Mandal Commission and now the Supreme Court favour quotas to be capped at 50%, this could be exceeded in “exceptional cases”. “You have to make an exceptional case and pass an Act in the Assembly… that it should be included in the Ninth Schedule of the Constitution. Tamil Nadu has done that.”
Asked about what the Centre should do now, Moily said it will have to ask Maharashtra to pass a law, and then take necessary steps to include it in the Ninth Schedule. “The Centre can always do that provided data is collected through a socio-economic educational survey,” he said, advising the state to conduct such a survey.
CPI general secretary D Raja questioned the criteria to cap quotas at 50%, while arguing that reservation is a state matter. “The Supreme Court talks about equality. In that case, why is it not talking about the right to education, right to employment or right to housing?… You talk about equality when 1% of corporate houses own the entire wealth of this country? What has happened to the Indian welfare state?” Raja said.
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