In August 2018, the Narendra Modi government pushed through the 102nd amendment to the Constitution even though the Opposition had expressed significant reservations about it. In 2017, the Opposition had stalled the amendment, which related to giving constitutional status to the National Commission of Backward Classes, when it was tabled in Parliament. This led Prime Minister Narendra Modi to accuse the Opposition of denying members of Other Backward Classes their rights, even though they constitute the majority of India’s population.

On Wednesday, the Supreme Court verdict in the Maratha quota case has confirmed the Opposition’s fears.

The court was hearing a batch of petitions that challenged the Maharashtra State Reservation for Socially and Educationally Backward Classes Act, 2018, saying it would breach the ceiling of 50% quota limit imposed by the Supreme Court itself in a landmark verdict in 1992. The court held that the quota was unconstitutional.

In a 3:2 majority, a Constitution bench of the Supreme Court also held that the power to identify and notify socially and educationally backward classes at both the Central and the state levels will now lie exclusively with the President.

What does this mean?

Till now, there have been two separate lists of groups that constituted the Other Backward Classes that were eligible to avail of quotas in educational institutions and government jobs. The Centre had a list of Other Backward Classes that was used for admission to educational institutions run by the Centre and Central government jobs. The states had their own lists of Other Backward Classes that they used for state institutions.

When the Maratha quota in Maharashtra was challenged before the Supreme Court last year, the petitioners argued that the 102nd amendment to the Constitution removed the powers of the states to identify groups that could be included among the backward classes. This power, they said, rested exclusively with the Centre since it was the President who has been given the power to notify the list of backward classes.

This mirrored the apprehensions that Opposition members in Parliament expressed when the amendment was tabled. The matter even went to a select committee, where the Centre assured members that the amendments would in no way affect the powers of the states. It rejected the changes suggested by the Opposition.

On Wednesday, though, the Supreme Court’s interpretation of the provisions confirmed the Opposition’s misgivings. Henceforth, there will only be one list of backward classes to be notified by the President. This list can only be amended by Parliament.

Flawed enactment

How did the majority of judges on the five-judge bench come to such a conclusion?

Justice Ravindra Bhat dealt with this aspect in detail. During the arguments, those opposing the petitions that challenged the Maratha quota in Maharashtra relied heavily on discussions in Parliament and the select committee when the amendment was passed. They said that the Centre had assured the Opposition that the amendments had not been made with the intention of taking away powers from the states.

In fact, Justice Bhat pointed to several amendments that the Oppposition had proposed to solidify the states’ rights to identify backward classes. None of these were accepted.

The amendment created a constitutional National Commission of Backward Classes. Then, through the insertion of Article 342 A, it said the President would notify the list of backward classes after consulting the governor in case of a state. Since the governor acts on the advice of the state cabinet and the President on the aid and advice of the Union cabinet, this essentially meant that the Centre would process the notification after consulting the state. The amendment also defined a backward class as one identified through Article 342 A.

During the course of the proceedings, Attorney General KK Venugopal argued that the purpose of the amendment was not to divest the states of the powers to identify backward classes. He said that the amendment pertained to the Central list of Other Backward Classes that the Centre uses for education and employment in central institutions. This does not cover the state list.

The majority of the judges on the bench rejected this position.

In this, they said that while parliamentary debates and select committee reports could be used as an external aid when there is ambiguity in the law, the primary basis for interpretation is the language of the law itself.

Justice Bhat argued that there would have been no necessity to include Article 342 A in the Constitution if the intention of the amendment was only to accord constitutional status to the National Commission for Backward Classes.

He said that the purpose of the law was to replicate the model that the Centre uses for Scheduled Castes and Schduled Tribes, where the President notifies communities as such. Powers to amend the list are vested with Parliament. That is, in the case of Scheduled Castes and Scheduled Tribes, there exists only one list.

The court said:

“If one interprets the entire scheme involving Articles 366(26C), 342A(1) and 342A(2), the irresistible conclusion that follows is that the power of publishing the list of SEBCs [socially and educationally backward classes, in relation to every State and Union Territory for the purposes of theConstitution is with the President only.

Such notification is later called as the Central List by Article 342A(2); it can only be amended by the Parliament. The contrary interpretation virtually reads into the provisions of the Constitution amendments which were proposed and expressly rejected in the proceedings of the Select Committee; it also has the effect of reading in what certain dissenting members had proposed.”

Justice Bhat concluded that after the 102nd amendment was passed, the final authority in identification of socially and educationally backward classes would rest with the Centre. In a crucial paragraph, the judges noted:

“The consultative provisions under Articles 338B(7) and 338B(9) in the opinion of this Court, only imply that in matters of identification, the States can make their recommendations. However, by reason of Article 342A, it is the President, i.e. the Union Government only, whose decision is
final and determinative. The determination made for inclusion or exclusion can be
amended through a law made by Parliament alone.”

The end result is that following the Wednesday judgement, the states can no longer directly identify and notify socially and educationally backward classes even for the purposes of state employment and educational institutions. This will have to be done by the Centre. If the state wants the list amended, it has to do so through Parliament.