Interpretations Which Impede A Just Social Order

Context: Critical analysis of Supreme Court judgment on Maratha reservations law, which called for their reservation in education and public employment in the state.

Supreme Courts rationale behind the verdict

• Maratha community did not constitute a socially and educationally backward class.
• The law in breach of 50% of total available positions reservations limit, previously set by Court.
• State governments had no independent power to declare a group as a backward class.

Role of States and Centre in deciding backward classes:

• Following the Indra Sawhney judgement 1992:
  • At the Centre: The determination of backward classes was made by the National Commission for the Backward Classes.
  • At the States: By the regional commission; thus the backwards classes kept out of the Central List were entitled to reservation at under the State governments.
    • For e.g., 25 different groups categorised as backward in Tamil Na­ du do not ?nd place in the central List.
  • This division of power between the states and the Centre stood at contrast to the lists of SCs and ST (under Article 341), where the power to prepare them vested solely with the Union government.
• Following the 102^nd Constitutional Amendment Act: It granted constitutional status to the National Commission for Backward Classes.
  • It introduced Article 342A, which stipulates that President may, after consultation with the state, notify groups of persons within a State deemed to be socially and educationally backward.
  • Article 366(26C) was also added, whereby “socially and educationally backward classes” was defined as equivalent to the backward classes as under Article 342A.
  • As such lists could be altered only by the Parliament, it gave the Centre exclusive powers in deciding such backward classes.

Critical analysis of the verdict

• Equality concern: Relating to the issues with the limit of 50% reservation criteria -
  • Not mandated by the Constitution: Articles 16(4) and 15(4), which confer power on government to make reservations, contains no such limitation.
  • Limits the achievement of substantive equality: A seven judge bench in State of Kerala vs NM. Thomas 1975 held it as an affirmative action by state (guaranteed under the Constitution) to attain substantive equality, and therefore the limit of reservation to 50% was deemed incongruous.
  • Incompatible positions in Indra Sawhney vs Union of India case, 1992: While on the one hand, the 5 judges bench acknowledged reservations as provisioning of substantive equality, on the other hand, it limited the reservation to 50%, barring exceptions, remains contradictory.
• Federalism concern: Relating to the issue of determining the backward classes, the Courts observations were unclear in terms and interpretations -
  • Central and State list categorisation were seen as a contradistinction to each other, creating a rift between the Centre and the States.
  • However, the Union Minister of Social Justice and Empowerment had earlier clarified that Article 342 doesn’t take away the state’s right to include or remove classes from the List.
  • The term “Central List” in Article 342A (unlike Article 341 for SC’s and ST’s) shows that the Constitution recognises the power of State government to frame lists of their own.
  • Thus, the court’s decision in denying the right to recognise backward classes directly impede the ability of States to secure a just social order.

Conclusion: While a review petition has been filed, it is imperative that Parliament amends the Constitution and grants to States an express power to determine backwardness. Any other result will offend the delicate balance at the heart of Indian federalism.