SCO Explains: Maratha Reservations (Part 2)

Click here for Part 1.

Transcript

The Supreme Court recently read down the provision granting reservations for Marathas. In the first part, we introduced the background to this case and looked at the first question: on whether the 50% limit on reservations applied or could be breached. In this part, we look at the interpretation of the 102nd Constitutional Amendment Act, 2018.

 

This was enacted a few months before the Act providing for Maratha reservations, which was Maharashtra’s Socially and Educationally Backward Classes Act, or the SEBC Act, 2018. The main stated purpose of the Constitutional Amendment was to provide constitutional status for the National Commission for Backward Classes (NCBC).

 

This was done by introducing Article 338B. It also introduced Articles 342A and 366 (26C). 366 (26C) defines SEBC for the purposes of the Constitution. It says that SEBC, socially and educationally backward classes, are those classes deemed to be so under Article 342A, the other article introduced by the Amendment.

 

SEBC is the term used for classes which can get special provisions, such as reservations, under the Constitution. So, a community must be identified as an SEBC before it can be granted any reservations. Earlier, this process of identification could occur both at the State and Central level.

 

So, what exactly does Article 342A say? It says that the President, with the advice of the States, can notify a list of SEBCs. Then Parliament can amend this Central List, as it is called in the Article. The question is then whether States still have the power to identify SEBCs.

 

There is a 3:2 split on this issue.

 

Justices Ravindra Bhat, Nageswara Rao and Hemant Gupta, in the majority, say no, they do not have such a power. Whereas Justices Ashok Bhushan and Abdul Nazeer, in the minority, say yes, they do have this power. The majority held that the Amendment should be interpreted in line with Articles 341 and 342.

 

These two articles contain provisions for recognizing Scheduled Castes and Scheduled Tribes through a list  notified by the President, which can then be amended by Parliament. And there are similar definition clauses which also state that Scheduled Castes and Scheduled Tribes are those classes as identified by the processes in these  Articles. The scheme for identifying Scheduled Castes and Scheduled Tribes has been interpreted as giving only the Centre the power to identify them.

 

So, since virtually the same language is now being used for SEBCs after the 102nd Amendment, the same interpretation should apply. Justice Bhat’s approach to interpretation lays down the primacy of ‘internal aids’. This involves using the words of the Constitution itself, read as a whole, as the primary source of interpretation.

 

So, the plain meaning of the text and the similarity to other Articles would mean only the Centre would have the power to identify SEBCs.

 

The minority, whose opinion was expressed by Justice Bhushan, had a different approach. He held that the modern method of interpretation was of purposive interpretation.

 

This aims at interpreting legislation, including Constitutional Amendments in the context of the purpose with which it was enacted. He also said that ‘external aids’ can be used in order to determine the history and purpose of any legislation. External aids cover things other than the words of the Constitution itself.

 

So, he looked at two external aids to find the purpose and context of the Amendment. First, he looked at the use of the phrase ‘Central List’ in law. Various legislations and cases have recognized the difference between a State List, which contains communities which have reservations for State services and the Central List for Central services.

 

So, the use of the phrase ‘Central List’ in the Amendment might indicate it only affects the Centre and the States would still retain their power. Second, he looked at the Rajya Sabha Select Committee’s Report on the 102nd Amendment when it was a Bill. The Committee had considered adding a clause to explicitly protect States’ powers.

 

But since the Minister proposing the Amendment Bill had assured them States would not be affected, they did not go ahead with adding this clause. This might indicate Parliament did not intend to take State’s powers. Justice Bhushan also highlighted that any interpretation should consider the principle of federalism. Based on this, the minority held that the power of States to recognize SEBCs was in Articles 15 and 16 of the Constitution. And therefore it was not affected by the 102nd Amendment when interpreted through a purposive lens. The majority responded to this opinion, Justice Bhat held that ‘external aids’ are only for the purpose of determining the context of legislation.

 

They cannot change the meaning of the words itself. In fact, the Select Committee Report had some dissents and Parliamentary records also contained speeches expressing concern about whether States’ powers could be protected. So, there was no certainty in what Parliament’s intention was in enacting this Constitutional Amendment.

 

Justice Bhat cautioned against the use of purposive interpretation. Justice Rao added that even under purposive interpretation, the text must be the first source for identifying the purpose. External aids help only if there’s ambiguity in the words of the Constitution. And that was not the case here.

 

So, the majority has ordered that the list of SEBCs under the new Amendment should be prepared by the President expeditiously, after consulting the NCBC and the States.

 

They also upheld the Amendment itself. They stated that a mere amendment would not violate the basic feature of federalism. The basic structure of the Constitution would not be threatened unless an amendment went against the very essence of federalism.

 

However, the story of Maratha reservations has not ended here. The night of the judgment, Chief Minister Uddhav Thackeray asked the Centre to include Marathas in the new Central List. The Centre for its part, has filed a review petition on the interpretation of the 102nd Amendment seeking to overturn the majority opinion of the Court.

 

It remains to be seen whether the review will be admitted.

 

Read our plain English summary of the judgment here.