New Delhi: The Supreme Court, by a majority 3:2, on Wednesday held the 102nd Constitutional amendment, which also led to setting up of National Commission for Backward Classes (NCBC), took away states' power to identify socially and educationally backward classes under their territory for grant of quota in jobs and admissions.
The 102nd Constitution amendment Act of 2018 inserted Articles 338B, which deals with the structure, duties and powers of the NCBC, and 342A which deals with power of the President to notify a particular caste as SEBC and power of Parliament to change the list.
A five-judge Constitution bench headed by Justice Ashok Bhushan, in their four separate verdicts, however, was unanimous on other key issues such as the Maratha quota law was invalid and the 1992 Mandal judgement, capping total reservation to 50 per cent, did not need a relook or reference to larger bench.
While Justice Bhushan wrote 412-page long verdict for himself and Justice Nazeer and was in minority on the point whether the 102 Constitutional amendment takes away the right of states to identify SEBC.
Justice S Ravindra Bhat wrote 132-page long verdict and Justices L Nageswara Rao and Hemant Gupta, in their separate judgements, concurred with Justice Bhat and his reasoning in holding that states have lost their power to identify SEBC under their territory after 102nd Constitutional amendment.
Writing the majority judgement on this aspect, Justice Bhat, said, "By introduction of Articles 366 (26C) and 342A through the 102nd Constitution, 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, can only make suggestions to the President or the Commission, for "inclusion, exclusion or modification of castes or communities" in the SEBC list, Justice Bhat said.
"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," the judgement, endorsed by two other judges, said.
All the five judges of the bench, however, held the 102 Constitutional amendment as valid and it did not affect the federal polity and did not violate the basic structure of the Constitution.
"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," Justice Bhat said.
All judges also concurred on aspects such as the Indra Sawhney judgement, also known as the Mandal verdict, did not require to be referred to a larger bench.
They also concurred on the issue that "the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act granting 12 and 13 per cent reservation for Maratha community in addition to 50 per cent social reservation is not covered by exceptional circumstances as contemplated in Mandal judgement."
"The state government, on the strength of the Maharashtra State Backward Commission Report chaired by M C Gaikwad has not made out a case of existence of extraordinary situation and exceptional circumstances in the state to fall within the exception carved out in Indra Sawhney judgement," Justice Bhat said.
All judgements said the appointments made in government jobs and admissions in post graduate courts after the Bombay High Court verdict of 2019 upholding Maratha quota and September 9, 2020 order of the top court staying the implementation of quota will not be affected.
The judgement came on a batch of pleas challenging the Bombay High Court verdict which had upheld the grant of reservation to Marathas in admissions and government jobs in the state.
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