The Untramelled Power of the President to identify Socially and Educationally Backward Classes
The Untramelled Power of the President to identify Socially and Educationally Backward Classes
- Aman Pandey, Faculty of Law, University of Lucknow
The Constitution of India by way of Fundamental Rights enshrined under Part III, particularly, Article 15 and 16, lays down the doctrine of protective discrimination. To uphold this doctrine and to remove the ambiguities laid down by the decision in Champakam Dorairajan v. State of Madras[1], Article 15(4) was added by way of the Constitution (1st Amendment) Act, 1951. Under this clause the State is empowered to make special provisions for the advancement of any socially and educationally backward classes (Hereinafter to read as SEBCs) of citizens or for the Scheduled Castes or Tribes. The principle behind Article 15(4) is that a preferential treatment can be given validly where SEBCs need it. Thus, this Article enables the State to determine two things: First, who are socially and educationally backward classes? And second, what is the limit of reservation?[2] The majority reiterated in reference to power of the State in respect of identification of SEBCs, in the Mandal Case[3] and held that under Article 16(4) the State has power to determine the ‘backward class of citizens’ which includes the SEBCs as well. Thus analyzing these observations it may be proper to infer that the State, undeniably, had power to identify and determine as to which class of people would fall within the ambit of SEBCs, the quantum and benefit of reservation that may granted to them in their particular State. However, recently this power has been clutched away by the hon’ble Apex Court by its decision in Dr. Jaishree Laxamanrao Patil v. Chief Minister[4] wherein, 3:2 majority, held that the after the insertion of the Constitution (102nd Amendment) Act, 2018 the power of State to identify SEBCs has been abrogated. The essence of the issue was whether the State government’ role in identifying backward classes had been divested by the Amendment. The Union government asserted that Parliament intended only to make a Central List that would be apply to the institutions under the Central government and it had nothing to do with the Lists of backward classes created by the concerned State governments. [5]
Let us now examine the provisions that were added by way of this Amendment in the Constitution which are regarded to put bar upon this power of the State.
Article 342A can be read as follows:
(1) The 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.
(2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”.[6]
The analysis of this Article reveals that the final authority in respect of inclusion or exclusion of SEBCs is firstly rests with the President, and thereafter, in case of any modifications or exclusion from the lists initially published is conferred upon the Parliament. Thus by way of Article 342A the power of State to legislate or classify in respect of ‘any backward class of citizens’ has be divested. The observation framed by the five judges’ constitution bench could be summarized as follow:
The bench was of opinion that after the insertion of Articles 366(26C) and 342A by was of the 102nd Constitutional Amendment, no any authority except the President has been conferred with the authority to identify the SEBCs and include them in a list to be published under Article 342A. The President may seek and act upon the recommendations provided by the Commission established under Article 338B while determining a section of society as to it being SEBCs or not. The State should also seek to take into considerations the advice of the Commission while enunciating any policy beneficial for SEBCs. It is also pertinent to note that it is mandatory for the commission to share any report prepared as to the identification, with the States which they are bound to conform to as per the provision of Article 338B. However, the final authority rests with the President (i.e. as per Article 367 r/w section 3(8)(b) of the General Clauses Act, the Central government.
The Bench also observed that the States could, only make suggestions after determining a section of society as SEBCs through their existing mechanism or by statutory commissions, to the President or the Commission under Article 338B, for the induction or removal or modification of any caste or community enshrined in the list under Article 342A.
The bench also interpreted the meaning of the expression ‘central list’ in Article 342A (2) and said that the List is notified by the President under Article 342A (1). It further stated that it is only list for all the purposes of the constitution that needs to be referred to determine SEBCs by the concerned State or Union Territory. The bench said that the use of the term "the Central List" refers to none other but the one published under Article 342A(1) and therefore it imply that the States have no any power to publish their own list of SEBCs. After the publication the amending power of such list rests in the hands of the parliament which could amend it through an enacted legislation, as provided by Article 342A (2). Nevertheless the bench didn’t snatch away all the powers of the State to make reservations for the benefit of any specific community or caste. Therefore the States’ power to grant quantum of reservations, the essence of reservations and the type of reservations, and any other matters falling within the course of Article 15 and 16 remains unaffected
The Apex Court judgment also pulled out the contemplations of the Centre before the Council of Ministers Select Committee that clearly indicated that it had disapproved the intent of the members who recommended the addition of a specific clause stating that the States’ power to identify SEBCs would not be seized.
The minority, Justice Ashok Bhusan and S. Abdul Nazeer, however opined that the Constitution 102nd Amendment Act does not seek to abrogate the authority of the State to identify and determine a backward class within its jurisdiction. It held that Article 342A was enacted to confer constitutional status to National Commission for Backward Classes (NCBC) and for issuing of list of the SEBCs by the President which was to be referred as the Central List for governing organisations and employments under the Government of India.
Lastly directions have been issued to the Parliament to provide the notification specifying the list of SEBCs for each State and Union Territory and until the Centre does so, the current state lists of SEBCs may continue to be followed. Now in this situation the Centre has two alternatives first either It could chose to comply with the order of the Apex Court and should notify the directed list or it may seek to bring an amendment to the Constitution to remove the ambiguity that the 102nd Constitutional Amendment was not intended to snatch the power to identify the SEBCs from the State. [7]
References:-
1.AIR 1957 SC 257
2.Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency
3.Indra Sawney v. Union of India (AIR 1993 SC 477)
4.CA 3123 of 2020
5.https://www.thehindu.com/news/national/explained-the-supreme-court-ruling-on-identifying-backward-classes/article34516632.ece
6.https://legislative.gov.in/amendment-acts-102-to-onwards
7.https://indianexpress.com/article/explained/maharashtra-maratha-quota-supreme-court-verdict-7303546/
