Only President can pick backward classes, says SC, upholds 102nd amendment | India News



NEW DELHI: In an important decision which could have wider ramifications, the Supreme Court by a majority declared on Wednesday that only the President (read the Centre) can take decisions on declaring socially and educationally backward communities for granting reservation and upheld the 102nd constitutional amendment denuding the power of states in this regard.
A five-judge Constitution bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat was unanimous on the validity of the 102nd constitutional amendment but differed on its implication for recognising socially and educationally backward classes (SEBCs).
The majority, comprising Justices Rao, Gupta and Bhat, concluded that the amendment has taken away the power of states to decide on designating SEBCs and now only the President can take a decision. However, Justices Bhushan and Nazeer held that states can also identify SEBCs and there would be two lists – central and state lists – of backward communities as has been the practice for the last 68 years.
State governments have been expanding the list of SEBCs, the official jargon for “OBC status”, which entitles the recipient community to quota benefits, and the verdict means states will now be restricted to making recommendations to the Centre in favour of the “aspiring” backwards.
The response of the Centre to the verdict could be interesting. It had said the power to identify SEBCs lies with Parliament only with reference to the central list and states can have a separate lists.
But the majority of the bench felt otherwise. “By introduction of Articles 366 (26C) and 342A through the 102nd amendment, 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 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,” Justice Bhat said.
The 102nd amendment was brought to give constitutional status to the National Commission for Backward Classes and Article 366(26C) and 342-A were introduced as per which the President can notify a class as SEBC.
Justice Bhat said as per the amendment, there will be only one list and it “ can only be amended through a law enacted by Parliament”.
Justice Bhushan, however, said backward classes were all this while being identified by the respective state governments which provided reservation under Articles 15(4) and 16(4) and the same should continue.
“The Constitution Bench of Indra Sawhney held each state government is fully competent to identify backward classes and this is why the Sawhney (verdict) directed for appointment of a permanent body, both by Union as well as by the state, and consequently commissions were constituted— National Backward Classes Commission and State Backward Classes Commission. To reverse the entire scheme, a clear and explicit constitutional amendment, was necessary. There is no express indication in the 102nd constitutional amendment that the power of the state is being taken away,” he said.


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