On Wednesday, The Supreme Court upheld the 102nd amendment which introduced Articles 366 (26C) and 342 in the Constitution, through which the National Commission for Backward Classes (NCBC) was established and the power to identify socially and educationally backward classes (SEBCs) for reservations in jobs and education, was taken away from state governments. This was part of a larger judgement where the SC struck down provisions of the Maharashtra law which provided reservations to the Maratha community in the state. The Maratha reservations raised the reservation quota above the 50% ceiling (set by the court in the 1992 Indra Sawhney Judgement).
The present judgement was made by a five-judge constitution bench led by Justice Ashok and consisted of Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta, and S Ravindra Bhat. The bench asserted that reservations should not exceed the 50% ceiling, only unless the circumstances are “extreme”. In regards to the rule that state governments cannot identify and add backward classes to lists anymore, Justice Bhat has stated that introduction of Articles 366 (A) and 342 A, allows only the President, “to the exclusion of all other authorities”, to identify SEBCs and include them in reservation lists for each state and union territory.
The states can only make recommendations to the President for the inclusion and removal of castes onto OBC lists. The bench has stated that while identification of SEBCs now is fully under central authority, the power to set up reservations for particular castes, define the nature of benefits, the quantum of reservations, remains in the hands of the states.
While the bench maintains that the decision will not infringe upon “federal polity” and does not go against constitutional ideals, the repercussions of such a move do just this. It becomes yet another means to flout OBC reservations which have been instituted by various state governments since the time of Independence. The Mandal commission which aimed to identify a country wide list of OBCs, was only implemented in 1993, decades after state governments had been providing OBC reservations.
It is important to note that each state and region would differ in terms of diversity and population share of different castes, and it has been the state governments which have been able to identify castes into sub-categories to provide proportional representation. Tamil Nadu is a prime example of this; the state among many others has passed the 50% cap on reservations, and has included non-Hindu castes within BC lists. The centralisation of identifying backward castes risks this regional and population specific categorisation, and threatens the progress made in OBC reservations by various states wherein the 50% cap has already been exceeded.
