Updated: March 17, 2021 4:46:13 am
Subsequent to the 102nd Constitutional amendment, only the President, in consultation with state Governors, can identify Socially and Educationally Backward Classes (SEBCs) and states can provide reservation benefits to only those mentioned in such a central list, petitioners opposing the Maratha quota law told the Supreme Court Tuesday.
“While states can make provisions for the benefit of SEBC under Article 15 (4) of the Constitution, the SEBC has to be mentioned in a Presidential notification under Article 342A after the 102nd amendment”, senior advocate Shyam Divan told a five-judge Constitution bench, headed by Justice Ashok Bhushan.
The bench, also comprising Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta, and S Ravindra Bhat, was hearing petitions against the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, which provides reservation to Marathas in jobs and admissions in the state.
Article 342A Clause (1) says that “the 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 while according to clause (2), the “Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class…”
The argument also found support from senior advocate Gopal Sankaranarayanan, who pointed out that consultation with the governor is consultation with states and that the ultimate power for inclusion/ exclusion of SEBC in the central list would rest with Parliament.
After the amendment, Maharashtra had set up the M G Gaikwad Commission which gave a report on the status of the Maratha community, which was then introduced into the list of SEBCs by the state, Sankaranarayanan said, adding that this was not permissible.
After the constitutional amendment, the Union and every state government must consult the National Commission for Backward Classes (NCBC) on every related policy decision, but this was not done in the case of Maharashtra’s law, the senior advocate said.
The 102nd amendment sought to address the lack of uniformity in extending reservation benefits to backward classes and brought in cohesion, he said, adding that it still remains with the state to choose from the central list, based on adequacy or inadequacy within service, to decide which communities should be given benefit of reservations and if so, what percentage.
Sankaranarayanan also drew the court’s attention to the findings of Justice Rohini Commission —formed to look into the question of equitable redistribution of the 27% quota for Other Backward Classes (OBC) — and said that it had found that almost half the intended beneficiaries were not getting reservation. He termed this shocking.
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