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Wednesday, April 14, 2021

Maratha reservation hearing: Some states introduce new groups ahead of polls for votes, says A-G

Addressing the bench, also comprising Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, Venugopal, however, said that the 102nd constitutional amendment by which Article 342A was introduced does not take away the power of states to identify backward classes.

By: Express News Service | New Delhi |
March 19, 2021 4:35:08 am
Maharashtra reservation quota, Maratha quota, SC Maratha quota, Maharashtra reservations, Maratha jobs quota, Maratha college quota, India news, Indian Express newsOn November 30, 2018, the Maharashtra legislature had passed a bill granting 16 per cent reservation to Marathas. (File Photo)

Hinting at political use of reservation powers by states, Attorney General K K Venugopal on Thursday said some states introduce new groups ahead of elections to garner votes.

“…one of the unfortunate vices of power given to the State under Art. 15(4) and 16(4) is that before each election, groups are introduced and votes are obtained,” Venugopal told a five-judge Constitution bench headed by Justice Ashok Bhushan, which is hearing petitions challenging the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act that provides reservation to the Maratha community in jobs and admissions.

Addressing the bench, also comprising Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, Venugopal, however, said that the 102nd constitutional amendment by which Article 342A was introduced does not take away the power of states to identify backward classes.

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”. According to Clause (2) of the Article, “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 Attorney General drew the court’s attention to the 1992 judgment of a nine-judge bench of the Supreme Court in the Indra Sawhney case and said it requires the Centre as well as states to set up commissions to identify backward classes.


“When a specific direction is issued by a nine-judge bench, and the government shows every indication to implement it, is it conceivable that an amendment to the Constitution will be made, by which states are denuded of the right to identify backward classes?”, said Venugopal. “According to me, it is inconceivable that any such amendment would be brought into force, the effect of which would be that no state would be having the power to identify SEBC.”

He said no changes have been made which impacts the power of states to grant reservation under Articles 15(4) and 16(4) of the Constitution. Article 342A does not touch the power of the state, he said. To construe it as excluding states from exercising power is not justified because there is no attempt to modify Articles 15(4) and 16(4), which declare that power to identify backward classes lies both with the state and Centre, he added.

Venugopal submitted that there can be a central and state list of SEBC and the Centre would only use its list for employment in services under it. “There are PSUs in the Government of India. Even offices of the Centre in states where there is the employment of the public servants of the Union…. There are also institutions such as IITs and IIMs in these cases, Union won’t take lists made by states,” he said.

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