Reservation in India: 105th Constitutional Amendment Act, 2021 studied along with 102nd Amendment Act, 2018 and Maratha Judgement, 2021

This Article is written by Roshni Agarwal (2nd year, B.A.-LL.B(Hons.) Amity Law Schol Noida (ALSN)
Amity University Uttar Pradesh (AUUP))

“There is equality only among equals. To equate unequals is to perpetuate inequality.” – B.P. Mandal[1]

The age-old caste system of India is responsible for the origination of the reservation system in the country.

The Constitutional 127^th Amendment Bill 2021 passed on 4^th August 2021 seeks to restore the states’ power to make their own OBC lists. It has been passed in the Lok Sabha with 385 members voting in support and no members opposing it. The amendment is necessary to restore the powers of the State Governments to maintain a state list of OBCs which was taken away by a Supreme Court interpretation. If the State list gets abolished, nearly 671 OBC communities would lose access to reservations in educational institutions and in appointments. This would adversely impact nearly one-fifth of the total OBC communities.

According to the Constitution of India, Articles 15(4), 15(5) and 16(4) confer power on a State to identify and declare the list of socially and educationally backward classes. As a matter of practice, separate OBC lists are drawn up by the Centre and each state concerned.

The 102^nd Constitutional Amendment Act of 2018 inserted Articles 338B and 342A.

New Additions in the Constitution of India by the 102^ndAmendment Act of 2018[2]

Passed on 11^th August 2018.

This 102^nd Constitutional Amendment Act took the power from the State Governments to form OBC lists, given back to them by the recent 105^th Amendment Act of 2021.

• Article 338B: National Commission for Backward Classes[3]

There shall be a commission for the socially and educationally backward classes known as the National Commission for Backward Classes consisting of a Chairperson, Vice- Chairperson and three other members appointed by the President.

It shall be the duty of the commission to:

• Investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes and evaluate the working of such safeguards.
• Inquire into complaints with regard to the deprivation of rights and safeguards to the people of the SEBC community. (While exercising this duty or investigating any matter the Commission shall have all the powers of a civil court trying a suit.)
• Participate and advise on the socio-economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and various States.
• Present reports to the President annually in respect of the above matters and also provide recommendations in such reports.

The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.² The same is done before the legislature of a State if the report or any of its parts relate to a matter with which that particular State Government is concerned.

• Article 342A: Socially and educationally backward classes[4]

(1) The President, by public notification, can specify social and educationally backward classes in respect of a State or Union Territory in consultation with the Governor (if it is a State). This particular class will be socially and educationally backward for only that particular State or Union Territory.

(2) Parliament may by law include in or exclude any socially and educationally backward classfrom the Central List of SEBCs. Thus, by means of this clause only Parliament or the Union was given the power to make list of SEBCs.

• Article 366 (26C)[5]:

Definition of socially and educationally backward classes added which is that socially and educationally backward classes for the purposes of the Constitution of India are such backward classes as specified under Article 342A.

105^th Constitutional Amendment Act, 2021[6]

Passed on 18^th August, 2021, followed by 127^th Constitutional Amendment Bill. The New OBC Act.OB

This Act has made amendments to Articles 338B, 342A and 366(26C), all added in the Constitution by the Constitution(One Hundred and Second Amendment) Act, 2018. Article 338B has constituted the National Commission for Backward Classes, Article 342A has dealt with the Central List of the socially and educationally backward classes (commonly known as the Other Backward Classes) and Article 366 (26C) has defined the socially and educationally backward classes.

The legislative intent at the time of passing of the Constitution (One Hundred and Second Amendment) Act, 2018 was that it deals with the Central List of the socially and educationally backward classes (SEBCs). It recognised the fact that even prior to the declaration of the Central List of SEBCs in 1993, many States/Union territories were having their own State List/Union territory List of OBCs. The same was clarified in the Parliament that the States and Union territories may continue to have their separate State List/Union territory List of SEBCs. The castes or communities included in such State List or Union List of Backward Classes may differ from the castes or communities included in the Central List of SEBCs.[7]

Although since 1993, there always existed separate lists of the Central Government and that of the State Governments and Union territories, a question arose after enactment of the Constitution (One Hundred and Second Amendment) Act, 2018 as to whether the said amendments to the Constitution mandated for a single Central List of SEBCs specifying the SEBCs for each State, thereby taking away the powers of the State to prepare and maintain a separate State List of SEBCs.

In order to adequately clarify that the State Governments and Union territories are empowered to prepare and maintain their own State List/ Union territory List of SEBCs and with a view to maintaining the federal structure of this country, the Constitution (One Hundred and Fifth Amendment) Act, 2021 has been brought amending article 342A and making consequential amendments in articles 338B and 366 of the Constitution.

Addition to the Constitution of India by the 105^th Amendment Act, 2021:

Article 342A (3): ‘Notwithstanding anything contained in clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List.’[8]

Maratha Judgement[9]

Dr.JaishriLaxmanrao Patil v. The Chief Minister &Ors. (5^th May 2021)

The problem started with this. The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 was passed. This Act extended reservation to the Maratha community in public education and employment.

The first challenge to the quota was filed in the Bombay High Court right after the State Government passed the legislation. Petitioners said that the quota violated the Supreme Court order as given in the case of Indra Sawhney in 1992 that had ruled that reservation in any State should not exceed the 50 percent mark.

Eventually in its judgement in June 2019, the high court upheld the Maratha quota but asked the State Government to reduce it from 16% to 12% (Education) or 13%(Jobs), as recommended by the State Backward Class Commission (Gaikwad Commission)

On the question of breaching the 50% mark, the High Court held that the ceiling imposed by the Supreme Court could be exceeded in exceptional circumstances.

The matter was then taken to the Supreme Court of India which referred it to a larger constitutional bench consisting of 5 judges as: Justice Ashok Bhushan, Justice S. Abdul Nazeer Justice L.Nageswara Rao, Justice Hemant Gupta and Justice S. Ravindra Bhat.

This bench struck down Maratha Reservation law (SEBC 2018) for exceeding 50% cap and it upheld the Indra Sawhney Case.

Some more important points related to this case as[10]:

1. 1992 Judgement of the Supreme Court in Indra Sawhney v. Union of India need not be referred to a larger bench or revisited and the 50% ceiling on reservation is a good law.
2. Exceeding ceiling limit of 50% laid down in the above mentioned case is violative of Articles 14 and 15 of the Constitution of India.
3. There were no extraordinary circumstances to grant reservation to the Maratha Community over and above the 50% ceiling.
4. Exceeding the ceiling limit above 50% without exceptional circumstances violated Article 14. Thus, 2018 Act as amended in 2019 exceeds the limit without any exceptional circumstances.
5. The Court further ruled that the Gaikwad Commission has not made out a case of existence of extraordinary situation and exceptional circumstances to classify Marathas as Socially and Economically Backward Caste.

The main plank of the bunch of petitioners challenging the validity of the Maratha quota was that it took the total reservation way beyond the 50% ceiling on quota put by the Supreme Court in its landmark Indra Sawhney judgement in November 1992, while upholding the validity of the 27% OBC quota in government jobs, which was later extended to admissions in state run educational institutions.

The State Government, however, said that there was no illegality in giving reservation to Maratha community and pointed out that many states were providing reservation above 50% which has not been stayed by the Supreme Court.

Here a fact which should be mentioned is that the reservation in Maharashtra was already at 52% before this case i.e.exceeding 50%. Further, the State wanted to provide extra 16% reservation taking the total reservation to about 66%. Further, there is also 10% reservation of EWS.

History of Reservation in India[11]

1950: Year in which our Constitution was adopted, Reservation provided to SCs/STs (Articles 15[12], 16[13], 330, 332, 334, 342 and 366)

1951: 1^st Amendment provided reservations in educational institutions to SC/ST through the case of State of Madras vs. ChampakaramDoraiRajan.

1963: MR Balaji vs State of Mysore- Supreme Court ruled that total reservation could not exceed 50%.

1978: Mandal Commission set up to consider quota for OBCs (27% seats)

1992: Apex Court in Indra Sawhney’s case upheld 27% reservation for OBCs. Also concept of Creamy Layer discussed.  For any case of reservation, 50% cap shall never be exceeded except in exceptional circumstances as stated above.

2006: 93^rd Amendment Act, 2005 empowered states to make special provisions for SEBCs and SC/ST in admission to educational institutions.

2018: 102^nd Amendment was brought.

2021: 127^th Constitutional Amendment Bill, 2021 (popularly known as the OBC Bill) and converted into act as 105^th Constitutional Amendment Act, 2021.

Conclusion and Suggestions

No political party has the courage to remove reservation given in the Constitution of India to SCs and STs by the framers of our Constitution. Therefore, they are adding new articles in the Constitution to grant reservation to people who are socially and educationally backward or who are economically weak and do not have the required resources. The framers of our Constitution, particularly Dr. B.R. Ambedkar granted reservation to Scheduled Castes and Scheduled Tribes to bring them at par with other classes in the society like Brahmins, etc. The need for this arose because the SCs/STs were illtreated in the society for a very long time by the people who recognise themselves as upper castes. They were deprived of resources and were lacking behind. Therefore, reservation was granted to them.

The framers of the Constitution of India thought that 10 years was a sufficient time for these people to come at par with others classes and castes in the Indian society and after that period the future governments will remove the reservation. But, no political party has been able to do that till now because that will result in a lot of protests and uproar by the people. In fact, reservation of seats in the Lok Sabha for SCs and STs has been extended by 10 more years[14] till 2030 by the 104^th Amendment Act of 2019 by amending article 334[15] of the Constitution of India. This has been happening every 10 years. In my opinion, a thing once granted becomes very difficult to remove or be taken away. That’s why to work for people other than SCs/STs who are in need of opportunities, reservation in name of Other Backward Classes (OBC)s or Socially and Educationally Backward Classes(SEBC)s is provided by the government. There is also reservation to EWS (Economically Weaker Sections) provided now since 2019 by amending articles 15[16] and 16[17] of the Constitution.

List of References

Primary Sources:

1. Mandal Commission Report on the Backward Classes Commission, First Part, Volume 1 and 2 (1980).
2. P M Bakshi, The Constitution of India 389, 393, 411 (Lexis Nexis, 17^th Edition, 2020)
3. The Constitution (One Hundred and Second Amendment) Act, 2018, §3,4,5, No. 34, Acts of Parliament, 2018 (India).
4. The Constitution (One Hundred and Third Amendment) Act, 2019, §2,3, No. 3, Acts of Parliament, 2019 (India).
5. The Constitution (One Hundred and Fourth Amendment) Act, 2019, § 2, No. 2, Acts of Parliament, 2019 (India).
6. The Constitution (One Hundred and Twenty Seventh Amendment) Bill, 2021, Statement of Objects and Reasons, No. 124, Bills of Parliament, 2021 (India).
7. The Constitution (One Hundred and Fifth Amendment) Act, 2021, § 2,3,4, No. 52, Acts of Parliament, 2021 (India).
8. Dr.JaishriLaxmanrao Patil v. Chief Minister & Others, 2021 SCC OnLine SC 362
9. INDIA CONST. art. 15(4), 16(4), 15(6), 16(6), 334.

Secondary Sources:

1. Kapil Sikka, OBC Bill passed by Parliament-127^th Constitutional Amendment explained, Study IQ education, https://youtu.be/KLRK8WuuqhE(last visited Oct. 10, 2021).
2. Dr Mahipal Rathore, OBC Bill: 127^th Constitution Amendment Bill passed by Lok Sabha, Path Finder, https://youtu.be/wweClGbpeGA (last visited, Oct. 10, 2021)
3. Samvidhaan- Episode 5/10, Sansad TV, https://youtu.be/6R5tLBNZZAQ (last visited, Oct. 10, 2021).
4. VishwavardhanNarera, Kakoli Nath, OBC Act, 2021 Explained, 105^th Constitutional Amendment Act / Reservation System, https://youtu.be/l8baX6PtaAA (last accessed Oct. 10, 2021)
5. Constitutional (127^th) Amendment Bill, 2021, Drishti IAS, (6^th Aug, 2021) https://www.drishtiias.com/daily-updates/daily-news-analysis/constitutional-127th-amendment-bill-2021
6. OBC Bill: Key things to know about the bill that seeks to undo SCs quota order, The Economic Times, (Aug. 13, 2021, 11:00 AM) https://m.economictimes.com/news/et-explains/obc-bill-key-things-about-the-bill-that-seeks-to-undo-supreme-courts-recent-quota-order/articleshow/85204148.cms
7. Gopalan K R, A Study on Reservations in the Educational Sector for the Economically Weaker Sections, Volume IX, Issue III, Parishodh Journal, 6175, 6175-6177 (2020).
8. Parliament passes bill to extend SC/ST reservation in legislatures, The Economic Times, (Dec. 12, 2019, 9:15 PM) https://m.economictimes.com/news/politics-and-nation/parliament-passes-bill-to-extend-sc/st-reservation-in-legislatures/articleshow/72493721.cms
9. 105^th Constitutional Amendment Act | An Analysis, Legal Bites (Sep. 23, 2021) https://www.legalbites.in/105th-constitutional-amendment-act/

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[1]Mandal Commission Report on the Backward Classes Commission, First Part, Volume 1 and 2 (1980).

²The Constitution (One Hundred and Second Amendment) Act, 2018, §3,4,5, No. 34, Acts of Parliament, 2018 (India).

[3]P M Bakshi, The Constitution of India389 (Lexis Nexis, 17^th Edition, 2020).

[4]P M Bakshi, The Constitution of India393 (Lexis Nexis, 17^th Edition, 2020).

[5]P M Bakshi, The Constitution of India411 (Lexis Nexis, 17^th Edition, 2020).

[6]The Constitution (One Hundred and Fifth Amendment) Act, 2021,§ 2,3,4, No. 52, Acts of Parliament, 2021 (India).

[7]The Constitution (One Hundred and Twenty Seventh Amendment) Bill, 2021, Statement of Objects and Reasons, No. 124, Bills of Parliament, 2021 (India).

[8]The Constitution (One Hundred and Fifth Amendment) Act, 2021, § 3, No. 52, Acts of Parliament, 2021 (India).

[9]Dr.JaishriLaxmanrao Patil v. Chief Minister & Others, 2021 SCC OnLine SC 362.

[10]Dr.JaishriLaxmanrao Patil v. Chief Minister & Others, 2021 SCC OnLine SC 362.

[11]VishwavardhanNarera, Kakoli Nath, OBC Act, 2021 Explained, 105^th Constitutional Amendment Act, https://youtu.be/l8baX6PtaAA (last accessed Oct. 10, 2021.

[12]INDIA CONST. art. 15, cl. 4, Ins. by the Constitution (First Amendment) Act, 1951.

[13]INDIA CONST. art. 16, cl. 4.

[14]The Constitution (One Hundred and Fourth Amendment) Act, 2019, § 2, No. 2, Acts of Parliament, 2019 (India).

[15]INDIA CONST. art. 334, cl. a, Subs. by the Constitution (One Hundred and Fourth Amendment) Act, 2019.

[16]INDIA CONST. art. 15, cl. 6, Ins. by the Constitution (One Hundred and Third Amendment) Act, 2019.

[17]INDIA CONST. art. 16, cl. 6, Ins. by the Constitution (One Hundred and Third Amendment) Act, 2019.