BREAKING - States Have No Power To 'Identify' Socially & Educationally Backward Classes After 102nd Constitution Amendment : Supreme Court Holds By 3:2 Majority

In a significant judgment, the Supreme Court has held by 3:2 majority that the 102nd Constitution Amendment has abrogated the power of states to identify "Socially and Educationally Backward Classes(SEBCs)".

The majority judgment held that after the introduction of Articles 338B and 342A to the Constitution "the final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is firstly with the President, and thereafter, in case of modification or exclusion from the lists initially published, with the Parliament".

The states can, through their existing mechanisms, or even statutory commissions, 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).

This pronouncement was given in the case Dr Jaishree Laxmanrao Pati v The Chief Minister and others, in which a constitution bench was considering the validity of Maratha reservation and 102nd Constitution Amendment.

The bench unanimously upheld the constitutional validity of Constitution (One Hundred and second Amendment) Act, 2018, however differed on the question whether it affected the power of States to identify SEBCs.

The majority (Justices S. Ravindra Bhat, with whom Justices L. Nageswara Rao and Hemant Gupta agreed with) observed that the power of identification of SEBCs hitherto exercised by the states now shifted to the domain of the President (and for its modification, to Parliament) by virtue of Article 342A and that it does not in any manner violate the essential features or basic structure of the Constitution. 

Justice Bhushan(with Justice Nazeer) and Justice Bhat(with whom Justices Rao and Gupta agreed) expressed different views regarding interpretation of the said Amendment.

Article 342A of the Constitution by denuding States power to legislate or classify in respect of "any backward class of citizens" does not affect or damage the federal polity and does not violate the basic structure of the Constitution of India, the Court (3:2) held.

The Constitution (One Hundred and Second Amendment) Act, 2018, introduced Article 338B which provides for a Commission for the socially and educationally backward classes to be known as the National Commission for Backward Classes. Further, as per Article 342A, 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.

Justice Ravindra Bhat observed in his judgment as follows :

"Parliament, through the 102ndAmendment clearly intended that the existing legal regime for identification of communities as SCs and STs and for their inclusion in the list of SCs and STs under Articles 341 and 342, which had hitherto existed, ought to be replicated in relation to identification of SEBCs"

 The majority judgment interprets the 102nd Amendment as follows: 

(i) By introduction of Articles 366 (26C) and 342A through the 102nd Constitution of India, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution.

(ii) The states can, through their existing mechanisms, or even statutory commissions, 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).

(iii) The reference to the Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all purposes of the Constitution, in relation to each state and in relation to every union territory. The use of the term "the Central List" is only to refer to the list prepared and published under Article 342A (1), and no other; it does not imply that the states have any manner of power to publish their list of SEBCs. Once published, under Article 342A (1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A (2). (iv) In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it. If the commission prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, under Article 342A (1), by reason of Article 367 read with Section 3 (8) (b) General Clauses Act).

(v) The states' power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 – except with respect to identification of SEBCs, remains undisturbed.

(vi) The Commission set up under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution.
(vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes 132 of the Central Government and central institutions, continue to operate. This direction is issued under Article 142 of the Constitution of India.

Justice Ashok Bhushan and S. Abdul Nazeer (minority) however opined that the 102nd Constitutional amendment does not take away the power of the State to identify backward class in the State. 

(29) We are of the view that word 'Central' in Article 342A (2) was used for purpose and object. The use of 'Central' was only with the intent to limit the list issued by the President to Central services. It is well settled rule of interpretation that no word in a statute or Constitution is used without any purpose. Word 'Central' has to be given meaning and purpose.

(30) When we have interpreted Article 342A to mean that Article 342A refers to 'Central List' which is prepared for services under the Government of India and organisations under the Government of India, the definition given under Article 366(26C) which specifically refer to Article 342A has to be read together and list of backward classes which is not Central List shall not be governed by the definition under Article 366(26C). Since, the (26C) has been inserted in the context of Article 342A, if the context is list prepared by the State and it is State List, definition under (26C) shall not govern.

(31) We, thus, hold that Article 342A was brought by Constitution 102nd Amendment to give constitutional status to National Backward Classes Commission and for publication of list by the President of socially and educationally backward classes which was to be Central List for governing employment under Government of India and the organisations under it.

Justice Rao, wrote a separate judgment, agreeing with Justice Bhat's interpretation of 102nd Judgment. "There is only one list that can be issued by the President specifying the socially and educationally backward classes and only those classes are treated as socially and educationally backward classes for the purposes of the Constitution.. Only those backward classes included in the public notification under Article 342 A shall be socially and educationally backward classes for the purposes of the Constitution.", the Judge said. Justice Gupta also stated that he agrees with judgments of Justices Rao and Bhat.

Interestingly, the Attorney General for India KK Venugopal had argued that the 102nd Amendment will not affect the power of the States in relation to identification of SEBCs.

Case: Dr Jaishree Laxmanrao Patil v Chief Minister [CA 3123 of 2020]
Coram : Justices Ashok Bhushan, L Nageswarar Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat
Citation : LL 2021 SC 243

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