NE LEGAL BUREAU
NEW DELHI, JUNE 26
The Supreme Court is scheduled to hear on June 28 the Centre’s plea seeking review of the May 5 majority verdict which held that 102nd Constitution amendment took away states’ power to declare Socially and Educationally Backward Classes (SEBC) for grant of quota in jobs and admissions.
A five-judge bench headed by Justice Ashok Bhushan will hear the Centre’s plea in chambers.
The bench, comprising Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, will also hear Centre’s applications in which it has sought open court hearing in the matter and stay of the majority verdict on the limited aspect of the amendment, till the plea is decided.
On May 13, the Ministry of Social Justice and Empowerment issued a press release saying that the Centre has filed a review petition against the May 5 verdict of the top court.
The Centre has maintained that the amendment did not take away the power of the state governments to identify and declare SEBC and the two provisions which were inserted did not violate the federal structure.
On May 5, a five-judge Constitution bench headed by Justice Ashok Bhushan had unanimously set aside Maharashtra law granting quota to Marathas and had refused to refer 1992 Mandal verdict putting a cap of 50 per cent on reservation to a larger bench.
The bench in its 3:2 majority verdict had ruled that 102nd Constitution amendment, which also led to setting up of National Commission for Backward Classes (NCBC), gives exclusive power to the Centre to identify and declare SEBC as only President can notify the list.
All the five judges of the bench, however, had held the amendment as valid and said it did not affect the federal polity or violate the basic structure of the Constitution.
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.
The Centre in its plea has said that majority verdict had upheld the validity of Article 342A but in doing so, the bench has interpreted that the provision denudes the states from exercising the power which they undoubtedly have for identifying and declaring SEBC in their respective states. The majority verdict was rendered by Justices L Nageswara Rao, Hemant Gupta and S Ravindra Bhat, while the minority verdict was of Justice Ashok Bhushan and S Abdul Nazeer, who said that under the constitution amendment both Centre and states have power to declare and identify SEBC. “It is submitted that the minority of two judges, including presiding judge, has expressly held that Article 342A does not have in any manner deprive states of their power and jurisdiction and competence to identify and declare the socially and educationally backward classes, which is the correct interpretation of Article 342A of the Constitution,” the plea has said. The review plea sought direction of the top court for staying the finding and observations made in the majority verdict to the extent that Article 342A and the other provisions inserted by the 102nd Constitution amendment would denude the states of their power to identify and declare SEBC.
The Centre has further said that the finding and observations made in the majority verdict be stayed so that the powers of the states to identify the SEBC, which always existed is not taken away in the absence of any express provision to that effect in the Constitution.
Justice S Ravindra Bhat had written 132-page long verdict and Justices L Nageswara Rao and Hemant Gupta, in their separate judgments, 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 judgment on this aspect, Justice Bhat had 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”.
Justice Bhat had opined that 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.
“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 judgment, endorsed by two other judges had said.
“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 had said.
The five-judge bench have also concurred on the issue that the Maharashtra law granting 12 and 13 percent reservation for Maratha community in addition to 50 percent social reservation is not covered by exceptional circumstances as contemplated in Mandal judement.
