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Friday, June 18, 2021

In Maratha quota order, apex court goes by SC, ST rules

In case of the SC/ST quota, the President notifies the community concerned, in a single list annexed to the Constitution, and powers to amend it are vested with Parliament.

Written by Apurva Vishwanath | New Delhi |
Updated: May 7, 2021 11:08:32 am
The five-judge Constitution Bench ruling in the Maratha quota case applies the SC/ST rules for SEBCs while interpreting the 102nd Constitutional amendment.

In ruling that the power to identify Socially and Economically Backward Classes (SEBC) lies exclusively with the Central government and not states, the Supreme Court in the Maratha quota verdict has virtually replicated the Constitutional model prescribed for Scheduled Castes and Scheduled Tribes.

In case of the SC/ST quota, the President notifies the community concerned, in a single list annexed to the Constitution, and powers to amend it are vested with Parliament.

In the case of reservation for OBCs, however, there is a Central list, enacted under the National Backward Classes Commission Act, 1993, for Central government jobs, and separate state lists for quota in state government jobs and educational institutions. For example, in Punjab, the Central list contains 68 groups and the state list has 71.

The five-judge Constitution Bench ruling in the Maratha quota case applies the SC/ST rules for SEBCs while interpreting the 102nd Constitutional amendment. The 2018 amendment gives constitutional status to the National Backward Classes Commission, and the President the powers to notify SEBCs.

“This sequitur is the only reason why change was envisioned in the first place by Parliament, sitting in its constituent capacity, no less, which is to alter the entire regime by ensuring that the final say in the matter of identification of SEBCs would follow the same pattern as exists, in relation to the most backward classes among all citizens (i.e. the SCs and STs, through Articles 338, 338A, 341 and 342),” Justice Ravindra Bhat wrote in his opinion which formed the majority view on this aspect.

“The rationale for the amendment… is that Parliament had the experience of about 71 years’ working of the Constitution and the system with respect to matters regarding identification of the most backward classes of communities, i.e. SCs and STs,” the majority view held.

The Court ruled this despite the Attorney General’s strenuous arguments that the intention of Parliament was not to diminish the powers of states. “… the 102nd Amendment was not meant to limit this constitutional obligation of states, but rather to streamline the method of identification of socially and educationally backward class of citizens, for the purpose of central employment, and centrally funded and sponsored schemes, institutions and facilities,” Attorney General K K Venugopal argued.

However, the Court held, “Such an interpretation amounts to saying that Parliament went to great lengths by defining, for the first time, the term SEBC in the Constitution, and provided for one notification under Article 342A issued by the President, which would ‘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’, and then, restricted the width of the term ‘deemed for purposes of this Constitution’ by giving primacy to the term ‘Central List’. Such an interpretation restricts the specification of a community as backward, in relation to that State or Union territory, only for purposes of the Central List, i.e., for purposes of central government employment and Central Institutions.”

However, despite the reference to use of the expression “Central List” in the 102nd Amendment, Justice Bhat held that the rationale of the amendment could not have been to “maintain status quo” and said that “too much cannot be read into the use of the expression the Central List for the simple reason that it is a list, prepared and published by the President, on the aid and advice of the Union Council of Ministers”.

“The term Central is no doubt, unusual, but it occurs in the Constitution in several places,” Justice Bhat noted.

The Court also refused to take into account the report of the Parliamentary Standing Committee to infer the intent of the legislation since it contained several notes of dissent by Opposition members which voiced concerns that the rights of states might be curbed by the amendment.

“None of the amendments proposed, expressly preserving the state power, were accepted. The dissenting members were aware that a fair and reasonable interpretation of the terms of the amendment clearly ousted the states’ powers to identify backward classes of citizens. Given all these circumstances, it is difficult to accept the contention that the Select Committee’s Report, to the extent it holds out an assurance, should be used as a determinative external aid for interpretation of the actual terms of the 102nd Amendment,” the Court held.

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