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Tuesday, June 15, 2021

How Supreme Court’s Maratha quota judgment could lead to a federal crisis on reservation

Sushil Kumar Modi writes: While upholding the 102nd Constitutional Amendment, it has failed to appreciate that Article 15 empowers the states to identify socially and economically backward classes of citizens.

Written by Sushil Kumar Modi |
Updated: May 22, 2021 8:24:07 am
Supreme Court's order takes away states' power to decide on backward class reservation. (Illustration: C R Sasikumar)

The Union government has filed a petition in the Supreme Court seeking review of its 3:2 majority judgment in which it has been held that the 102nd Constitution Amendment has taken away the power of the states to identify and prepare a list of Socially and Economically Backward Classes (SEBCs).

On the one hand, states have been deprived of the power to prepare the SEBC list, but, on the other hand, the Supreme Court has recognised the power of states to make reservation in favour of particular communities or castes, the quantum of reservation, the nature of benefits and the kind of reservation, etc.

The central government in the review petition has now asked for an open court hearing to review the judgment on the issue of the 102nd constitutional amendment and for a stay of the majority judgment till the review petition is decided.

This judgment has created a piquant constitutional and federal crisis, as the states have been exercising the power to identify the list of SEBCs from the beginning of the 20th century. This now stands withdrawn. In states like the Madras Presidency, Mysore, Bombay, Travancore-Cochin, reservation and other benefits to OBCs were in practice since the 1920s.

The principle of “protective discrimination” has been firmly established since 1920 in the Madras Presidency and a fixed quota of seats in medical colleges continued for three decades until they were declared unconstitutional by the Supreme Court in 1951 in the case of State of Madras vs. Srimati Champakam Dorairajan. This judicial verdict led to the Constitution (First Amendment) Act, 1951 and the insertion of Article 15(4), which empowered the states to make “special provision for the advancement of socially and educationally backward classes of citizens”.

In states like Bihar, 26 per cent reservation to OBCs in jobs and educational institutions were provided by the Janata Party government led by Karpoori Thakur in 1978 on the recommendations of the Mungeri Lal Commission. Similarly, in more than a dozen states, reservation in jobs and educational institutions were provided on recommendations of the respective state commissions.

It is interesting to point out that till 1992, there was no central list of SEBCs and no reservation in jobs and educational institutions in the central government. It was only on November 16, 1992, after the Indra Sawhney judgment, when the Supreme Court upheld 27 per cent reservation in central government jobs, that the Union government was authorised to prepare a central list for reservation of SEBCs in central government jobs and take other affirmative actions.

Acting on the directions of the Supreme Court in Indra Sawhney, the central and several state governments enacted laws for setting up commissions to ascertain and identify the backward class of citizens. Therefore, after 1992, there was a “central list” for central government services and a “state list” that was prepared by state governments for state-specific jobs.

Even during the discussion in the select committee of Parliament on the 102nd Constitution Amendment, some members raised concerns and sought clarification regarding Article 342A (1) and whether it would exclude the power of the state governments and state backward class commissions with regard to identification and exclusion and inclusion of classes in the state list.

The Ministry of Social Justice and Empowerment clarified to the select committee and the concerned minister assured the Members on the floor of Parliament that the proposed insertion of Article 342A (1) and (2) did not interfere with the power of state governments to identify SEBCs. The existing power of states would continue to exist even after the passage of the Constitution amendment bill.

Even in the affidavit filed by the central government before the Supreme Court, it was submitted that the power of Parliament to identify SEBCs lay with reference to the central list and states would have a separate list of SEBCs for reservation.

Therefore, the intention of the Union government in bringing the 102nd constitutional amendment was to safeguard the interest of the SEBCs more effectively and to create and confer the National Commission for Backward Classes with constitutional status at par with the National Commission for SCs and STs. The intention was not to change the status quo and to take away the power of the state governments to prepare and notify a separate state list of SEBCs.

However, the Supreme Court has interpreted the bare text of the 102nd constitutional amendment to the effect that only the President can publish a list of backward classes in relation to each state and that only Parliament can make inclusions and exclusions in that list. The Supreme Court has also directed the central government to notify the list of SEBCs for each state and Union Territory and until it is done, the present state list would continue to be in operation.

The states and central governments are on the same page on this issue and there is no conflict in their intention. The majority judgement by 3:2 has failed to appreciate that Article 15 empowers the states to identify socially and economically backward classes of citizens and that this power has not been changed by the 102nd Constitution Amendment.

However, if the review petition fails to convince the Supreme Court, the central government would have to expeditiously bring a constitutional amendment to resolve this crisis.

The writer is a BJP Member of Parliament, Rajya Sabha

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