The Supreme Court on March 8 sought responses from all the states on whether the 102nd amendment to the Constitution deprives the state legislature of its power to enact a law determining the socially and economically backward classes and conferring benefits to them under its enabling power.

The top court, while issuing notices to all the states, said it proposes to consider whether the landmark 1992 verdict in Indra Sawhney case, also known as the ‘Mandal verdict’, which caps the quota at 50 per cent, require a re-look by a larger bench in the light of subsequent Constitutional amendments, judgments and changed social dynamics of the society.

What is the case about?

The issue of interpretation of 102nd amendment cropped up before a five-judge Constitution bench headed by Justice Ashok Bhushan which was hearing the pleas pertaining to the 2018 Maharashtra law granting reservation to Marathas in education and jobs.

The Socially and Educationally Backward Classes (SEBC) Act, 2018 of Maharashtra was enacted to grant reservation to people of the Maratha community in the state in jobs and admissions.

The Bombay High Court, while upholding the law in June 2019, had held that 16 per cent reservation was not justifiable and the quota should not exceed 12 per cent in employment and 13 per cent in admissions. 

The Supreme Court had on September 9 last year stayed the implementation of legislation and referred the batch of pleas challenging the validity of law to a larger bench, but made it clear that status of those who have availed of the benefits would not be disturbed.

On March 8, the apex court said it would consider whether the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for SEBC Act, as amended in 2019, granting 12 per cent and 13 per cent reservation for Maratha community in addition to 50 per cent social reservation is covered by exceptional circumstances as contemplated by 1992 verdict in Indra Sawhney case.

During the hearing, senior advocate Mukul Rohatgi, appearing for Maharashtra, said the principal question which has arisen for consideration before this bench is interpretation of 102nd amendment. 

Rohatgi said interpretation of Article 342A is going to affect the legislative competence of the state and they have to be issued notice and given opportunity to defend their legislative competence and have their say on the 102nd amendment.

Attorney General K.K. Venugopal, appearing for the Centre, endorsed the submissions for issuing notice to the states saying the states might be affected with the interpretation which the court may take in the matter.

What is 102nd Constitution Amendment Act?

The 102nd Constitution Amendment Act of 2018 inserted Articles 338B, which deals with the structure, duties and powers of the National Commission for Backward Class, and 342A which deals with power of the President to notify a particular caste as Socially and Educationally Backward Classes (SEBC) and power of Parliament to change the list.

Evolution of reservation system for Backward Classes

Reservation for Backward Classes (BCs) was introduced even many years before Independence in most of the area comprising the presidencies and princely states south of the Vindhyas. 

The process gathered momentum in course of the censuses from 1881 to 1941. The Backward Classes movement first gathered momentum in south India, particularly in Tamil Nadu, where reservation was introduced much before Independence. 

The Indian Constitution through the Preamble envisages the Indian Republic to achieve the objective of securing to its citizens social, economic and political justice, liberty, equality and fraternity. It also elaborates the methodology to be followed for reaching this goal of social justice. 

Article 14 of the Constitution enjoins upon the State not to deny to any person equality before law or equal protection of laws. The principle of “right to equality” is further reiterated in positive and affirmative terms in Articles 15 to 18. 

Article 15 envisages not to discriminate any citizen and under clause (5) of Article 15, the State is empowered to make a special provision by law for advancement of any socially and educationally backward classes of citizens in the matter of admissions to educational institutions. 

Special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) of this Article declares that in the matter of public employment or appointment to any office under the State, all citizens of this country shall have equal opportunity. 

At the same time, Clause (4) declares that nothing in the said Article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. 

First Backward Classes Commission

The Other Backward Classes (OBCs) have historically suffered social and educational backwardness. ‘Backward Classes’ constitute such classes or citizens, other than the SCs and STs.

In view of Article 16(4) of the Constitution and in response to demands for reservation and other benefits for Backward Classes in other parts of India and in the Centre, the government appointed a Backward Classes Commission under Article 340 of the Constitution on January 29, 1953. 

The Commission, popularly known as the Kaka Kalelkar Commission, was required "to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove difficulties and to improve their conditions." 

The panel prepared a list of 2,399 backward castes/communities for the entire country and 837 of those were classified as ‘most backward’.

The Commission submitted its report on March 30, 1955. It was considered by the government for over five years, but was rejected in 1961. 

Second Backward Classes Commission

The Centre appointed the Second Backward Classes Commission (Mandal Commission) under Article 340 on January 1, 1979 to investigate the conditions of the Socially and Educationally Backward Classes and recommend the criteria for defining such classes of citizens, steps to be taken for their advancement and examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not adequately represented in public services and posts in connection with the affairs of the Union or of any state. 

The Commission submitted its report on December 31, 1980.

The Mandal Commission had estimated OBC population at 52 per cent of the total population.

The first tangible step for the implementation of the recommendations of the Mandal Commission’s report was taken in 1990. It was in August 1990 that the government took the historic decision to introduce reservation of 27 per cent for Backward Classes on the basis of the Mandal Commission’s recommendations. 

This was announced in the Parliament by then Prime Minister V.P. Singh on August 7, 1990. 

Formal orders were issued thereafter providing reservation for Socially and Educationally Backward Classes (SEBCs) of 27 per cent of the vacancies filled by direct recruitment in civil posts and services under the central government and Public Sector Undertakings and financial institutions for SEBCs. 

A number of writ petitions were filed in the Supreme Court questioning the order along with applications for staying it. 

The Supreme Court in its landmark judgment on November 16, 1992 in writ petition — Indra Sawhney and Others vs Union of India, popularly known as the Mandal Case — held the government order valid and enforceable subject to the exclusion to the socially advanced persons/sections from the notified Backward Classes. It directed that the implementation of the order shall be subject to the exclusion of the socially advanced members/sections (‘creamy layer’ as it was termed) of the Backward Classes. 

The members of the Other Backward Classes who fall in ‘creamy layer’ shall not get the benefit of reservation.

It also capped caste-based reservation at 50 per cent, ruling that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”. The limit could be exceeded only in compelling circumstances, it added.

Another direction of the Supreme Court required the Centre, and each of the state governments and administrations of Union Territories to constitute a permanent body, in the nature of a Commission or Tribunal, for advising the respective governments on the requests for inclusion and complaints of over-inclusion or under-inclusion in the lists of Backward Classes and also directed that the advice tendered by such body shall ordinarily be binding upon the concerned government.  

In pursuance of this direction of the Supreme Court, the Centre enacted the National Commission For Backward Classes Act, 1993, setting up a National Commission For Backward Classes.

For empowerment of the OBCs, a new body namely the National Commission of Backward Classes (NCBC) was given constitutional status with effect from August 15, 2018 by insertion of Article 338B in the Constitution. The erstwhile NCBC Act of 1993 was simultaneously repealed as per NCBC (repeal) Act, 2018.

In Tamil Nadu the reservation is set at 69 per cent. The state Assembly passed the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and Appointments or Posts in the Services under the State) Act, 1993, to keep its reservation limit intact at 69 per cent. The law was subsequently included into the Ninth Schedule of the Constitution through the 76th Constitution Amendment passed by Parliament in 1994.

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