NewDelhi Aug 20 : President of India has given assent to the Constitution (One Hundred and Fifth Amendment) Act, 2021 which enables States and Union Territories to identify Socially and Educationally 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.
The amendment was introduced in the wake of the Supreme Court ruling in the Maratha reservation case which had by a 3:2 majority, ruled that it is the Central government alone which is empowered to identify SEBCs.
To get over this judgment the Amendment Act has proposed changes to Article 342A.
“In order to adequately clarify that the State Government and Union territories are empowered to prepare and maintain their own State List/ Union territory List of SEBCs and with a view to maintain the federal structure of this country, there is a need to amend article 342A and make consequential amendments in articles 338B and 366 of the Constitution,” the ‘Statement of Objects and Reasons’ of the bill said.
The question regarding power of States to specify SEBCs had arisen in the Maratha Reservation case before the Supreme Court.
The Court in that judgment had held that 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).
“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 had held.
Article 342A was inserted into the Constitution by way of 102nd 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.”
The following changes are now proposed to be introduced to the said Article by way of the Constitution (One Hundred and Fifth Amendment) Act:
In Article 342A of the Constitution,- (a) in clause (1), for the words “the socially and educationally backward classes which shall for the purposes of this Constitution”, the words “the socially and educationally backward classes in the Central List which shall for the purposes of the Central Government” shall be substituted;
(b) after clause (2), the following shall be inserted, namely:- ‘Explanation.- For the purposes of clauses (1) and (2), the expression “Central List” means the list of socially and educationally backward classes prepared and maintained by and for the Central Government.
(3) Notwithstanding anything contained in clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List.’.
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.