The story so far: The 105th Constitution Amendment was notified on August 19 after it received the assent of President Ramnath Kovind. It is aimed at restoring to the States their power to identify socially and educationally backward classes . The Opposition set aside its differences with the government and supported the Amendment, which was passed during the stormy monsoon session with the required special majority. The Amendment became necessary to undo the effect of a Supreme Court verdict that States had lost their power to include or exclude communities in the ‘Backward Classes’ list after Parliament enacted the 102nd Constitution Amendment .
Why was the Amendment required?
Through the 102nd Constitution Amendment, Parliament created a National Backward Classes Commission, vesting it with the power to be consulted by the Centre as well as the States in all matters concerning the ‘socially and educationally backward classes’ (SEBCs). In a bid to clothe the Commission with the same powers as the Scheduled Castes and Scheduled Tribes Commission, Parliament used wording identical to the existing provisions relating to the SC/ST Commission. Thus, under Article 342A, it was laid down that the President shall notify a list of SEBCs in relation to each State and Union Territory in consultation with the Governors. This was called the ‘Central List’, and once it is notified, only Parliament alone could make changes to it. Based on this, the Supreme Court, while considering a challenge to the Maratha reservation in Maharashtra on various grounds, concluded that after this Amendment came into force, States can no more notify or identify backward classes, and only the President could do so, and further changes could be made by Parliament.
What was the reaction of political parties?
The Union government had argued vociferously in court that neither the Centre nor Parliament intended to take away the State’s power to identify SEBCs. The use of the term, ‘Central List’, meant that what the President notified was a list of backward classes for the purpose of the Central government and its instrumentalities, and did not affect the lists maintained by the various States. Political parties in the Opposition blamed the Centre for enacting a flawed law that led to the court coming to such a conclusion. As there was a political consensus that the Supreme Court’s interpretation required to be undone by law, it was decided to amend the Constitution once again to clarify the State’s role in identifying SEBCs. It was introduced as the Constitution (127th Amendment) Bill, 2021. After its passage and on receiving presidential assent, it was notified as the Constitution (105th Amendment) Act, 2021.
What does the 105th Amendment do?
Parliament adopted fresh legislation to undo the effects of the Supreme Court’s interpretation. Therefore, it contains specific clauses that seek to restore the original intention of having a ‘Central List’ for the purposes of the Union and letting States retain their respective lists. It first adds a proviso to the effect that the requirement that the National Backward Classes Commission should be consulted on policy matters will not apply to the State lists of SEBCs. It specifies that the list of SEBCs notified by the President shall be only for the purposes of the Central government alone, and that the ‘Central List’ means only the list “prepared and maintained by and for the Central Government”. Further, the 105th Amendment clarifies that every State or Union Territory may, by law, prepare and maintain for its own purposes a list of SEBCs and this may be different from the Central List. These changes are aimed at undoing the conclusion of three judges on the five-Judge Bench in the Maratha reservation case that the term ‘Central List’ applied to all SEBCs notified by the President and that it was the only List “for the purposes of the Constitution”. Finally, to end all debate on how SEBCs are defined, the latest Amendment also changed the definition given in the 102nd Amendment. Originally, “socially and educationally backward classes” were described as “such backward classes as are so deemed under Article 342A for the purposes of this Constitution”, that is, those found in the List notified by the President under Article 342A. This has now been changed to the effect that SEBCs are those so deemed under the same Article for the purposes of the Central government, or the State or the Union Territory.