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The Supreme Court had declared the Maratha Quota Reservations unconstitutional but the new amendment paves the way for its reversal.

The Constitution (One Hundred and Fifth Amendment) Act, 2021 has now received the assent of the President of India.
Amending Article 342A, the Act restores the power of State/Union Territories governments to prepare and maintain their own State List/ Union territory List of socially and educationally backward classes (SEBCs).

As the Statement of Objective of the presented Bill read, "with a view to maintain the federal structure of this country", the Act was introduced in Lok Sabha by the Minister of Social Justice and Empowerment, Dr. Virendra Kumar. On August 10, 2021 it was approved by the Rajya Sabha, after being unanimously passed by the Lok Sabha on August 9.

Article 338B, 342A and Article 366 (26C) were inserted into the statutes by the 102nd Constitution Amendment Act, 2018. Article 342A deals with the powers of the president to notify a particular caste as an SEBC. It also deals with the power of Parliament to change the list. Article 366 (26C) defines SEBCs. The Act of 2018 also gave constitutional status to the NCBC. 

Implications on Maratha Reservations(s):

The amendment has paved the way for the Maratha Quota reservations which were declared unconstitutional by recent Supreme Court Constitutional Bench verdict of May 5, 2021 with a 3:2 majority view.

Court had struck down Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 which granted reservation to the Maratha community in public education and employment in the State. (Jaishri Laxmanrao Patil v. Chief Minister).

While the Maharashtra government had granted reservation to the Marathas in jobs and education under the SEBC category, the top court had declared it null and void.

The Constitutional Bench differed on the interpretation of Article 342A. The question before the Court was whether the said Article deprived the States of the power to classify any community as SEBC. However, eventually, the Apex Court upheld the 102nd Amendment, whereas Justice Ashok Bhushan (with Justice Abdul S Nazeer) while upholding the Constitutionality of 102nd Constitutional Amendment however dissented with the majority & observed that the 102nd Constitutional Amendment did not take away State’s power to identify Backward Classes.

Court had also has dismissed the review petition filed by the Central government challenging the Court’s interpretation of the provisions of the 102nd Constitution Amendment Act, 2018, in a judgment delivered in May, 2021.

The Union Government had moved Supreme Court contending that the judgement required a relook because there were errors apparent on the face of the record & has also asked for an open court hearing so as to enable the Govt to make oral submissions on the ground of review.

The Top Court in its ruling on May 5 had also stated that only the President, based on the recommendations of the National Commission for Backward Classes (NCBC), will determine which communities will be included on the state OBC list.  The new act is a deviation of the said ruling.

It held that States can only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list.

“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.

Several states raised questions on the interpretation of the Amendment and argued that it curtails their powers.

According to the Constitution of India, Articles 15(4), 15(5) and 16(4) confer power on a state to identify and declare the list of socially and educationally backward classes. As a matter of practice, separate OBC lists are drawn up by the Centre and each state concerned.

However, with the Maratha Reservation Judgment, the Apex Court had held that 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 – except with respect to identification of SEBCs, to remain undisturbed.

Objective and Reasons of New Act

The present amendment was necessitated to clarify this controversy.

According to the ‘Statement of the Objective and Reasons’ of the present Act that reads as it was stated by the Government that although since 1993, there always existed separate lists of the Central Government and that of the State Governments and Union territories, a question has arisen after enactment of the Constitution (One Hundred and Second Amendment) Act, 2018 as to whether the said amendments to the Constitution mandated for a single Central List of SEBCs specifying the SEBCs for each State, thereby taking away the powers of the State to prepare and maintain a separate State List of SEBCs.

Therefore, 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, the present Act has been brought into action.

[With inputs from ANI]