The Supreme Court has dismissed the Centre’s plea seeking a review of its decision that states no longer have powers to declare socially and educationally backward classes (SEBC) for grant of quota in government jobs and admissions in higher education because of the 102nd Amendment to the Constitution in 2018.
The Centre had filed a review petition in the court against its interpretation of the 102nd Amendment in the case. The court in its May 5 order struck down a Maharashtra law that gave reservations in jobs and education to Marathas under the SEBC category.
A five-judge bench, headed by Justice Ashok Bhushan, held that there were not sufficient grounds to entertain the review petition filed by the Centre in May. The bench, also comprising Justices L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta and S. Ravindra Bhat, said the various grounds taken in the review petition have already been dealt with in the main judgment.
The Supreme Court had ruled that after the insertion of Article 342A in the Constitution through the 102nd Amendment, it is the Central government alone that is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), specifying SEBCs in relation to each state and union territory.
On May 5, a constitution bench of the Supreme Court, while dealing with the constitutionality of Maratha quota, had by 3:2 majority held that after the 102nd Amendment, only the President has the power to notify SEBCs, and that the power of states was only to make recommendations.
The states can, through their existing mechanisms, only make suggestions to the President or the Commission under Article 338B for inclusion, exclusion or modification of castes or communities, in the list to be published under Article 342A (1), the Court ordered.
Justice Rao, wrote a separate judgment, agreeing with Justice Bhat’s interpretation of 102nd Amendment. Justice Gupta also stated that he agrees with judgments of Justices Rao and Bhat. Justice Ashok Bhushan and S. Abdul Nazeer (minority) however opined that the 102nd Amendment does not take away the power of the state to identify backward class in the state.
According to the Apex Court, Articles 15(4) and 16(4) of the Constitution were untouched by the insertion of Article 342 , which meant that the states continued to exercise their power to identify SEBCs and provide for reservation.
The 102nd Amendment Act of 2018 inserted Articles 338B, which deals with the structure, duties and powers of the National Commission for Backward Classes, while 342A deals with power of the President to notify a particular caste as SEBC and the power of Parliament to change the list. It extinguished the role of the state governments in declaring any community OBC for the purposes of extending reservation.
The government in its plea had said that the minority of two judges, including presiding judge, has expressly held that Article 342A does not in any manner deprive states of their power and jurisdiction and competence to identify and declare the socially and educationally backward classes, which is the correct interpretation of Article 342A of the Constitution.
The previous BJP-Shiv Sena government in Maharashtra had in 2018 enacted the Socially and Educationally Backward Communities Act to grant reservation to the Maratha community in jobs and admissions. The Bombay High Court, while upholding the law in June 2019, had held that 16 per cent reservation was not justifiable and the quota should not exceed 12 per cent in employment and 13 per cent in admissions.