The article highlights the issues with the Supreme Court’s interpretation of the 102nd amendment depriving the States of power to identify the SEBCs.

How 102nd Constitution Amendment was interpreted by the SC?

• Supreme Court 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).
• The Supreme Court has interpreted 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.
• Until such lists are prepared, the court directed that the present state list would continue to be in operation.

Time-honoured authority of the States

• The states have been exercising the power to identify the list of SEBCs from the beginning of the 20th century.
• In states like the Madras Presidency, Mysore, Bombay, Travancore-Cochin, reservation and other benefits to OBCs were in practice since the 1920s.
• The Constitution (First Amendment) Act, 1951 and the insertion of Article 15(4), 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 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.
  

  Central list of SEBC after Indra Sawhney judgment

• Till 1992, there was no central list of SEBCs and no reservation in jobs and educational institutions in the central government.
• In the Indra Sawhney judgment in 1992, the Supreme Court upheld 27 per cent reservation in central government jobs for SEBCs.
• After Indra Sawhney, 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.

Intention of the Union government

• 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.
• Even during the discussion in the select committee of Parliament on the 102nd Constitution Amendment, the Ministry of Social Justice and Empowerment clarified that the proposed insertion of Article 342A (1) and (2) did not interfere with the power of state governments to identify SEBCs.
• 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.

Way forward

• 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.

Consider the question “Examine the issues with the Supreme Courts interpretation of the 102nd constitutional amendment regarding the States’ right to identify the socially and economically backward class.” 

Conclusion

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.

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