Only Central government can identify, include a community within Socially and Educationally Backward class list: Supreme Court [READ JUDGMENT]

The Supreme Court on Wednesday ruled that after the insertion of Article 342A in the Constitution, it is the Central government alone which is empowered to identify Socially and Economically Backward Class (SEBC) and include them in a list to be published under Article 342A (1), specifying SEBCs in relation to each State and Union Territory (Dr. Jaishri Laxmanrao Patil v. Chief Minister).

The States can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published under Article 342A (1), the Court ruled.

“By introduction of Articles 366 (26C) and 342A through the 102nd Constitution of India, 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 Court held

Except identification of SEBCs. 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 will however remain undisturbed, the Court clarified.

The judgment was delivered by a Constitution Bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat by 3:2 majority.

Justices Rao, Gupta and Bhat supported the proposition while the dissent was by Justices Bhushan and Nazeer.

This crucial ruling came as part of the judgment of the top court striking down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 which extended reservation to the Maratha community in public education and employment.

Article 342A was inserted into the Constitution by way of 102^nd Constitutional Amendment Act. It reads 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.”

One of the main arguments on which the Maratha SEBC Act was challenged was that after the Constitution (102nd Amendment) Act which came into force with effect from August 2018, the State legislature was denuded of its power to declare a particular class to be socially and educationally backward.

The High Court ruled that the restriction under Article 342A is applicable only to the list prepared by the Central government.

"The existence of central list of backward classes is distinct from the list of the State which is prepared by the State for translating the enabling power conferred on it and in any contingency, Article 342-A cannot be read to control the enabling power conferred on the State under Article 15 and 16,” the High Court had said.

When the appeal against the High Court judgment came before the Supreme Court, the following questions were framed by the Court

- Whether the Constitution 102nd Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes?

- Whether Article 342A of the Constitution abrogates States power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?

On the first question Justice Bhat held that by introduction of Articles 366 (26C) and 342A through the 102^nd Constitution of India, 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.

One of the arguments advanced by the States was that the term ‘Central List’ in Article 342(2) is not the list published by the Union for the affairs of the Union. The Constitution has used the word “Union” wherever the reference is made to the Government of India or Central Government, i.e., Articles 53, 73, 79, 309, List I of Schedule VII whereas the word ‘Central Government’ has been used recently in certain amendments which is not the expression used in the Constitution originally adopted.

Thus, it was argued that the reference to “Central List” means only the List in relation to states and union territories, for the purpose of the Constitution notified under Article 342A (1).

The Court, however, turned down the same.

It held that the reference to the Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all purposes of the Constitution, in relation to each state and in relation to every union territory.

“The use of the term “the Central List” is only to refer to the list prepared and published under Article 342A (1), and no other; it does not imply that the states have any manner of power to publish their list of SEBCs. Once published, under Article 342A (1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A (2),” the Court held.

In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B, the Court further held.

“Its advice shall also be sought by the state in regard to policies that might be framed by it. If the commission prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, under Article 342A (1), by reason of Article 367 read with Section 3 (8) (b) General Clauses Act),” the judgment explained.

The Commission set up under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution.

Till the publication of the notification mentioned above, the existing lists operating in all states and union territories, and for the purposes of the Central Government and central institutions, continue to operate, the Court directed.

The Court also held that Article 342A 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 Rao and Gupta concurred with Justice Bhat by way of separate concurring judgments.

[Read Judgment]