Maratha Reservation: Supreme Court Constitution Bench Hearing- Live Updates [Day-2]

Bench: There has to be clarity in the way we go forward. The use of the term “central list”, means that the same regime will make the changes. 

Justice Bhushan: We want to find out that after the Amendment, what is the legal regime ?

Justice Bhat: Jurisprudence on 341 says that it’s Parliament alone which can bring the lists which identify backward classes and SCs. 

Bench: Mr. Divan, you haven’t answered this question on the “Central list”.

Divan: The word “Central” can be found in the corresponding Articles. There are two elements: This Constitution does not seek to undo what has happened in the past. 

Divan: Art. 340, as we understand it, is not a Permanent Commission. It’s an ad-hoc commission. My next submission is in the context of Articles 341 and 342. 

Divan reads out Article 338B of the Constitution of India which deals with the NCBC. He submits that the essence of understanding of “poor” under Art. 16(4) is wider than SEBC. 

Divan: The identification of socially and backward classes is now done through a narrower process after the 102nd amendment. This identification is confined to a Constitutional mandate. 

Bench: It was never the intention that the Commission would prepare a list for the States. Article 342A(2) stipulates "Central List". You have to explain all this.

Divan: Allow me. 

Divan: Now please come to the 1993 National Commission for Backward Classes Act.

Bench: We have a question. Please see Section 2(c) which defines “lists”. 

Divan: After the 102nd Amendment, socially and educationally backward classes were defined as per Art. 15(4). States can therefore make special provisions, but only for those classes as have been notified under Art. 342A(1).

Divan: Here, there was no consultation between the President and the Governor as required under 342A. There was no consultation with the Commission by the State. In a judgement, it was held that reservation is not a fundamental right. 

Divan delineates the procedure which requires the President to notify socially and educationally backward classes. Further, States and Unions need to consult with the Commission before making reservations.