NEW DELHI: In an essential resolution which might have wider ramifications, the Supreme Court by a majority declared on Wednesday that solely the President (learn the Centre) can take choices on declaring socially and educationally backward communities for granting reservation and upheld the 102nd constitutional modification denuding the facility of states on this regard.
A five-judge Constitution bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat was unanimous on the validity of the 102nd constitutional modification however differed on its implication for recognising socially and educationally backward courses (SEBCs).
The majority, comprising Justices Rao, Gupta and Bhat, concluded that the modification has taken away the facility of states to resolve on designating SEBCs and now solely the President can take a choice. However, Justices Bhushan and Nazeer held that states may also determine SEBCs and there can be two lists – central and state lists – of backward communities as has been the apply for the final 68 years.
State governments have been increasing the listing of SEBCs, the official jargon for “OBC status”, which entitles the recipient group to quota advantages, and the decision means states will now be restricted to creating suggestions to the Centre in favour of the “aspiring” backwards.
The response of the Centre to the decision may very well be attention-grabbing. It had mentioned the facility to determine SEBCs lies with Parliament solely on the subject of the central listing and states can have a separate lists.
But the vast majority of the bench felt in any other case. “By introduction of Articles 366 (26C) and 342A through the 102nd amendment, 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. 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,” Justice Bhat mentioned.
The 102nd modification was introduced to provide constitutional standing to the National Commission for Backward Classes and Article 366(26C) and 342-A have been launched as per which the President can notify a category as SEBC.
Justice Bhat mentioned as per the modification, there will likely be just one listing and it “ can only be amended through a law enacted by Parliament”.
Justice Bhushan, nonetheless, mentioned backward courses have been all this whereas being recognized by the respective state governments which offered reservation underneath Articles 15(four) and 16(four) and the identical ought to proceed.
“The Constitution Bench of Indra Sawhney held each state government is fully competent to identify backward classes and this is why the Sawhney (verdict) directed for appointment of a permanent body, both by Union as well as by the state, and consequently commissions were constituted— National Backward Classes Commission and State Backward Classes Commission. To reverse the entire scheme, a clear and explicit constitutional amendment, was necessary. There is no express indication in the 102nd constitutional amendment that the power of the state is being taken away,” he mentioned.