The Power To Discriminate

Context: In the recent Maratha reservation case in the Supreme Court (SC), the court takes away states’ power to decide on the backward class reservation. That was not the Centre’s intention. The court must reconsider.

Evolution of jurisprudence related to States’ power to “Protective Discrimination.”

• The principle of “protective discrimination” has been firmly established since 1920 in the Madras Presidency and a fixed quota of seats in medical colleges.
• The First Constitution Amendment Act 1951: Led by the judicial verdict In State of Madras vs Srimati Champakam Dorairajan, inserted Article 15(4), which empowered the states to make “special provision for the advancement of socially and educationally backwards classes of citizens”.
• Mungerilal Commission: Recommended 26% reservation to OBCs in jobs and educational institutions in states like Bihar in 1978.
• Indra Sawhney Case 1992: Till 1992, there was no central list of Socially and Economically Backward Classes (SEBCs)and no reservation in jobs and educational institutions in the central government.
  • In the Indra Sawhney judgment, the Supreme Court upheld 27% reservation in central government jobs and authorised the Union government to prepare a central list for reservation of SEBCs in central government jobs and take other affirmative actions.
• 102^nd Amendment Act: Some concerns were raised regarding Article 342A (1) and whether it would exclude the power of the state governments and state backward class commissions.
  • However, The Ministry of Social Justice and Empowerment that the proposed insertion of Article 342A (1) and (2) did not interfere with the power of state governments to identify SEBCs.
  • Therefore, the intention of the Union government was to safeguard the interest of the SEBCs more effectively and to create and confer the National Commission for Backward Classes with constitutional status at par with the National Commission for SCs and STs.

Issues with the SC judgment:

• The Supreme Court has interpreted that only the President can publish a list of backward classes in relation to each state and that only Parliament can make inclusions and exclusions in that list.
• The majority judgement by 3:2 has failed to appreciate that Article 15 empowers the states to identify socially and economically backward classes of citizens and that this power has not been changed by the 102^nd Constitution Amendment.