105th Constitutional Amendment Act | An Analysis

By | September 23, 2021
105th Constitutional Amendment Act

This article titled ‘105th Constitutional Amendment Act– An Analysis’ is written by Saurav Joshi and brings out an analysis of the 105th Amendment to the Indian Constitution.

I. Introduction

Dr. Virendra Kumar, Minister of Social Justice and Empowerment tabled a bill in Lok Sabha on 9th of August in the Monsoon session to allow the state and union territories to identify and specify the Socially and Educationally Backward Classes (SEBCs) which was subsequently passed by the Lok Sabha and the Rajya Sabha on 10th of August and 11th of August, respectively.

The bill is now to be read as the 105th Constitutional Amendment Act. The Act amends Article 338B, 366 and 342A of the Constitution of India.

II. Analysis

The act comes in the backdrop of the Supreme Court judgment in the case of Dr. Jaishri Laxmanrao Patil v. The Chief Minister and others[1] and subsequently overrides the judgment. The Supreme Court by a majority of 3:2 (led by Justice S Ravindra Bhat on the interpretation of the 102nd Constitutional Amendment Act) in this case[2] observed that Parliament with the 102nd amendment intended to extend the current legal regime for identification of SCs and STs to the SEBCs. For achieving that, the Parliament inserted Article 338B, which is a mirror image of Article 338 and 338A.

Article 338B granted constitutional status to the National Commission for the Backward Classes dealing with its duties and powers. Justice S Ravindra Bhat observed, that had the Parliament with the 102nd amendment only inserted Article 338B in the Constitution, the task of identification of the Socially and Educationally Backward Classes would have remained with the states, but with introducing Article 342A[3] and the interplay of Article 366(26C)[4] and 338B, is where things take a reverse turn, and the States were now duty-bound to consult the commission under Article 338B.

Thus, after the 102nd Constitutional Amendment, and the interpretation laid down by the court in the Maratha Judgment[5], the commission shall prepare a report, such report was to be shared with the state government who was duty-bound to deal with the report according to the provisions laid down in Article 338B and the final say in identifying backward classes still rested with President (i.e. the Central Government), in toto, making the procedure analogous to the procedure for the identification of Scheduled Castes and Scheduled Tribes.

Before the Maratha Judgment, the prevalent practice among the state and union was, the state would specify their list of SEBC’s, and the Union would specify their own list of SEBC’s called a state list and central list respectively[6]. The reservation for these lists would accordingly fall into their respective state and the facilities they provide.

The communities in the State List would be entitled to reservation in the state universities and jobs and correspondingly the same for central list for central universities and jobs.  This interpretation created a problem for the state governments as it led to the exclusion of 671 OBC communities losing their reserved seats in the educational institutions and in their appointments to services under the state.

The 105th Constitutional Amendment Act solves this problem of interpretation laid down by the court by amending three articles 338B, 342A and 366. In Article 338B(9)[7] a non-obstante[8] proviso was inserted so that nothing in clause (9) of Article 338B shall apply on clause (3) of Article 342A. Article 342A(3) is also a non-obstante clause that excludes the clauses (1)[9] & (2)[10] of Article 342A and grants the power of identification and preparation of a list of socially and educationally backward classes to the state government, those entries could differ from the Central List.

The reason for using a non-obstante clause here was because of the usage of the word “Central List” in clause (1) which is explained in the explanation means to be the list of socially and educationally backward classes which is to be prepared and maintained by the Central Government. By adopting this method, the state government bypass the President’s ambit as specified under clause(1).

Article 366(26C) also sees the substitution of the word “Constitution” with “Central or the State or Union Territory, as the case may be” thereby overriding the interplay of Article 366(26C) and Article 342A in the Maratha Judgment.

III. Conclusion

With this act, the 102nd Constitutional Amendment now only operates for the Central Government. Parliament while bringing forth the 102nd Amendment clearly had no intention to strip away the state’s power in identifying and notifying SEBC’s as pointed out by Justice Bhushan in the Martha Case.

Justice Ravindra Bhat discarding the Parliament’s intention followed the principle of a strict reading of the Articles and concluded to them being pari materia to Article 341 and Article 342. Needs to be noted that, Supreme Court is currently examining the powers of the State in creating sub-categories within the SC and ST list in State of Punjab v. Davinder Singh[11].

The amendment still won’t lead to the restoration of the Maratha quota in the State of Maharashtra as the state still fails the requirement of 50% cap laid down for reservation in the Indra Sawhney[12] judgement. The 105th  Amendment is a welcomed constitutional amendment that removes a lot of constitutional lacuna’s and confusion created by the Patil Judgment.


References

[1] 2021 SCC OnLine SC 362

[2] Supra.

[3] Article 342A (1) lays down that the president may with the consultation of the Governor by public notification specify the socially and educationally backward classes. Article 342A (2) lays down that the Parliament may by law include 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.

[4] Article 366(26C) is a definition clause that lays down the definition of “socially and economically backward classes”.

[5] Dr. Jaishri Laxmanrao Patil v The Chief Minister and other

[6] On the Maratha Reservations Judgment: Part II, Alok Prasanna Kumar, Vidhi Legal Policy

[7] Article 338B(9) provides that “The Unions and every State Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes”.

[8] ‘Non-obstante’ is a Latin word that means ‘notwithstanding anything contained’. That means this clause empowers the legislation or a provision in which it contains, to override the effects of any other legal provisions contrary to this under the same law or any other laws. In the context of this, it overrides clause(3) of Article 342A.

[9] Article 342(A)(1) after amendment reads as “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 in the Central List which shall for the purposes of the Central Government be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be.

[10] Article 342A(2) sees no change in the text and still reads as: “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.”

[11] (2020) 8 SCC 63

[12] AIR 1993 SC 477


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2 thoughts on “105th Constitutional Amendment Act | An Analysis

  1. Rudrika bhagat

    105th constitutional amendment act does not allowed to exceed the 50% reservation seats which was already decided in the landmark case Indira sawhney vs Union of India. In which it was said that the reservation of casts should not exceed the limit of 50%. Due to which the Maratha reservation of Maharashtra state was cancelled

    Reply
  2. Yash Singh

    105th Amendment Act can be an eye-opener for the future segregation of various communities for the purpose of reservation in State as well as Union List without any discrepancy and confrontation between the Centre and State..

    Reply

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