Kerala High Court stays Government Order which included Christian Nadars in SEBC list

The Kerala High Court recently stayed the operation of a Government Order(GO) that had included the Christian Nadar community in the list of socially and educationally backward classes (S Kuttappan Chettiar and Anr. v. State of Kerala and Ors.)..Justice PB Suresh Kumar issued the interim stay order by placing strong reliance on the judgement of the Supreme Court in Jaishri Laxmanrao Patil v. The Chief Minister (referred to as the Maratha Judgement)."The clarification made by the apex court and the direction of the majority judgment in the said case, according to me, is not intended to save the additions made to the lists of socially and educationally backward classes operating in the States after the 102nd amendment of the Constitution, which are unconstitutional, till the President specifies the socially and educationally backward classes. The petitioners have therefore, made out a prima facie case for interim order," the Court said. .In 2018, the 102nd amendment was brought about to give constitutional status to the National Commission for Backward Classes and Articles 366(26C) and 342-A were introduced according to which the President can notify a class as SEBC..The Supreme Court had noted in the Maratha judgment that despite the fact that significant time had passed since the enactment of the 102nd amendment, steps have not been taken to specify SEBC in relation to the States. It had, therefore, directed the President to publish a comprehensive list of SEBC in relation to the States and Union Territories as provided for in Article 342-A of the Constitution of India. .Justice Kumar observed that the direction in Maratha judgement was issued to make sure that there is no vacuum with respect to Article 342-A which would prevent those belonging to SEBC from claiming the benefits guaranteed to them under Articles 15 and 16, until such time as the President publishes the list.The Court noted that Government Order in question was issued after the one issued after the 102nd Amendment to the Constitution.The Maratha judgement, the Court said, do not mean that the apex court has saved the additions made to the lists of socially and educationally backward classes operating in the States after the 102nd amendment to the Constitution and before the judgment of the Apex court, till the President specifies the SEBC in relation to the States.The petition was filed by the General Secretary of an organisation engaged in the upliftment of SEBC in the State and a person belonging to the Ganaka community which has been specified by the State as an SEBC..Advocate Rajesh TR, appearing for the petitioners challenged the GO dated Feb 2,2021 , which included Christian Nadars (except those belonging to SIUC (South Indian United Church) in the list of SEBC for the purpose of providing employment and educational benefits. .He contended that in the light of the provision contained in Article 342-A introduced to the Constitution by way of the 102nd Amendment with effect from August 2018, the State Government does not have the power to specify any class of persons as socially and educationally backward for the purposes of the Constitution..According to them, in the light of 102nd Constitutional amendment and the Maratha Judgement, it is for the President to make such specifications, and therefore, the GO is unconstitutional and violates the provisions of Article 342-A. .Advocate General Gopalakrishna Kurup K accepted the fact that in the light of the 102nd amendment and the Maratha judgement, it is for the President to specify the SEBC in relation to a State, after due consultation with the Commission set up under Article 338-BHowever, placing reliance on paragraph 670 of the judgment, he contended that until the President makes the list in terms of the provision contained in Article 342-A, the lists of SEBC operating in the States would continue to hold the field. .The Court noted that neither parties have disputed the fact that the GO was issued after the 102nd Amendment. Therefore, the question considered by the High Court for the purpose of passing the interim order was whether the Supreme Court has saved the additions made to the lists by the States after the 102nd amendment to the Constitution and before the Maratha Judgement. The Court opined that the additions made after the 102nd amendment cannot be saved as per the directions issued by the Supreme Court and proceeded to issue the interim order staying the operation of the GO..[Read Order]