Kerala High Court Stays Inclusion Of Christian Nadars In SEBC List; Applies Supreme Court's Interpretation Of 102nd Constitution Amendment

The Kerala High Court recently stayed the operation of a government order dated 6th February 2021 including the Christian Nadar community under the OBC category. 

Justice P.B Suresh Kumar also issued notice to the respondents in the matter. 

The petition was filed by the General Secretary of Kripa, an organisation engaged in the upliftment of socially and educationally backward classes in the State, and another person belonging to the Ganaka community, one of the communities specified by the State as a socially and educationally backward class. 

The petitioners were aggrieved by the aforementioned Government Order by which Nadars in the State belonging to Christian religious denominations other than SIUC (South Indian United Church) were included in the list of socially and educationally backward classes for the purpose of providing employment and educational benefits. 

The primary contention of the petitioners was that going by the provision contained in Article 342-A  the State Government was denuded of the power to specify any class of persons as socially and educationally backward for the purposes of the Constitution with effect from 15th August 2018.

In the light of the said constitutional amendment, it is for the President to make such specifications. Therefore, they alleged that the said order is unconstitutional, being violative of Article 342-A. They placed reliance on Jaishri Laxmanrao Patil v. The Chief Minister , which held that 102nd Constitution Amendment took away the power of states to specify and identify SEBCs, to support this argument.  

Advocate Rajesh T.R appearing for the petitioners, therefore, pressed for an interim stay of all further proceedings pursuant to the order, pending disposal of the writ petition. 

The Advocate General representing the State accepted the stance of the petitioner that it is for the President to specify the socially and educationally backward classes in relation to a State, after due consultation with the Commission set up under Article 338-B. 

However, he pointed out that a portion of the very same decision they relied on where the Apex Court clarified that till the President specifies the socially and educationally backward classes for the States under Article 342-A, the lists of socially and educationally backward classes operating in the States would continue to hold the field. 

The Court after hearing both the parties noticed that the respondents did not dispute the substance of Article 342A. Similarly, they have not disputed the fact that the impugned order was issued after the 102nd Amendment came into force. 

In other words, the inclusion of Nadars in the State belonging to Christian religious denominations other than SIUC in the list of socially and educationally backward classes is not in accordance with Article 342-A of the Constitution is not disputed by the State. 

The Apex Court upon noticing that steps were not taken to specify the socially and educationally backward classes in the States despite lapse of considerable time after the 102nd Amendment, directed the President to publish a comprehensive list expeditiously. 

The Bench observed that such a direction was issued to ensure that Article 342-A does not leave a vacuum with respect to the entitlement of socially and educationally backward classes to claim benefits under Articles 15 and 16 till the President specifies the socially and educationally backward classes. 

"The clarification made by the Apex Court and the direction, according to me, is not intended to save the additions made to the lists of socially and educationally backward classes operating in the States after the 102nd amendment of the Constitution, which are unconstitutional, till the President specifies the socially and educationally backward classes."

Finding that the petitioners have successfully made out a prima facie case for an interim order, the Court stayed the operation of the impugned Government Order 

Case Title: S.Kuttappan Chettiar & Anr. v. State of Kerala & Ors

Click Here To Read The Order