The 105th Constitutional Amendment: A Lawyer's Analysis

A deep-dive analysis of the recently-passed 105th Constitution Amendment Act, 2021.
The 105th Constitutional Amendment: A Lawyer's Analysis

The recent 105th Constitution Amendment marks a milestone in the infamous sector of reservation in India. It is quite unfortunate that it is not receiving the attention it deserves. While politicians are glad for the fodder this amendment offers for their political interests, this certainly does dent national interests equal to that of Indra Sawhney case, if not more.

Let us have a quick look at the historical backdrop of this legislation before we dwell on the issue at hand. The Constitution of India, in its original pristine form, contained clauses (1) to (3) of Articles 15, which deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Once, when the then Government of Madras made efforts to select a candidate based on his community and disentitled a meritorious student, a writ petition came to be filed, which culminated in the final decision rendered by the Supreme Court in the case of State of Madras vs. Champakam Dorairajan[1], which held that no reservation could be made in educational matters. In order to stultify the effect of this judgment having the force of law, the central government, in its first constitutional amendment in 1951, added Clause (4) to Article 15.

Following this amendment, the Government of India appointed a commission to inquire into the status of backward classes in 1953, famously known as Kaka Kalekar Commission, named after its chairman. The commission submitted its report in 1955 in which it listed 2399 castes or communities as socially and educationally backward, out of which 837 were classified as most backward. The report was not accepted by the Government and was put in cold storage. In 1979, the Janata Government took up the issue of preferential treatment for the backward castes and appointed the second backward classes commission under the chairmanship of B.P. Mandal. The Mandal Commission submitted its report on 31.12.1980, in which 3743 castes were categorised as “Other Backward Classes” (“OBCs” for short). The report suggested for reservation to the extent of 27%, apart from the reservation that could be accorded to persons belonging to SC/ ST community. This report too was shelved for nearly a decade.

In 1990, on the brink of losing the mandate to run the government was Mr. V. P. Singh, then Prime Minister of India. Political pundits, analysing the history of politics and elections in India, had noticed that the major surge of voters who tilted the famous 1977 elections in favour of Janata Party against then incumbent Mrs. Indira Gandhi, were persons belonging to these OBC communities. However, they lost sight of the fact that these persons had voted to Janata Party, not owing to their bias for their caste leaders, but had responded to the call of Mr. Jayaprakash Narayan, who apart from doing so much for the backward communities, was often referred to as the conscience of the nation. Taking the wrong moral out of every story, as is the case with most politicians, it was rightly believed that those who had the support of OBCs could win elections in India.

The Government headed by Mr. V. P. Singh thought of encashing the votes of OBCs by a scheme of reservation. On 13.08.1990, the Government of India issued an official memorandum (“OM”) purporting to extend the reservations for socially and educationally backward classes (“SEBC”s for short) in its services, with effect from 07.08.1990. The OM reserved 27% seats for the SEBCs, in addition to what was reserved for SC/ STs. Reservation extended to government appointments, public sector undertakings and financial institutions, including public sector banks.

Following widespread riots all over the country, a batch of petitions came to be filed challenging the OM and the action of the government. After hearing arguments of several counsels, nine judge bench of the Supreme Court of India, in the case of Indra Sawhney vs. Union of India[1], decided on 16.11.1992 that action taken by the Government in reserving seats for OBCs was constitutionally valid. By virtue of this judgment, the term “Classes” referred to Article 15 (4) could include “castes” that could determine social backwardness. However, the Hon’ble Apex Court laid down certain qualifications while upholding reservation:

(a) The ‘Creamy Layer’ of the backward classes should be excluded and the government should specify the basis of exclusion of creamy layer. It could be so made on the basis of income, extent of holding, etc.

(b) The inclusion or exclusion of a caste or a section of a caste would have to be periodically reviewed.

(c) Permanent Commissions should be appointed by the Central and State Governments to regularly decide the cases which would arise involving questions of whether a particular caste was rightly included or excluded for the purpose of benefitting from the reservation.

(d) The armed forces and some higher civilian posts to be selected by the Government should be outside the purview of caste reservations.

(e) Reservations cannot be applied to promotions.

To overcome one of these qualifications regarding promotions, the Parliament enacted the 77th Constitutional Amendment Act, 1995, inserting Clause 4A to Article 16[2].

National Commission for Backward Classes (“NCBC”) was set up under a separate statute in 1993. Several states set up State Commission for Backward Classes. The NCBC regularly reviewed the inclusion of several castes as SEBCs and the parliament kept acting on the advice of NCBC. Although, exclusion of castes from SEBCs was a theoretical possibility, it has remained a virgin provision.

After a span of 25 years of its working, the present Government thought it fit to give NCBC a constitutional status in the form of 102nd Constitutional Amendment in 2017, thereby allaying fears of some and thwarting the desires of many that the entire issue of reservation could be relooked constitutionally. This 102nd constitutional amendment, which came into force from 15.08.2018, brought a change in regime already in existence for backward classes to fall in line with Articles 341 and 342 of the Constitution[1]. Inserting Article 338B, NCBC was recognised under the Constitution and its powers and jurisdiction redefined. Contemporaneous with this amendment, the National Commission for Backward Classes Act, 1993 was repealed by an act of parliament. In effect, a statutory body rose to become a constitutional body.

By inserting Article 342A, the President was authorised to specify the SEBCs by a notification and the parliament could, through a law include or exclude in the central list any class from the central list of SEBCs. An inclusive definition for this purpose was also made in Article 366 (26C) defining “Socially and Educationally Backward Classes” as those so deemed under Article 342A.

When this constitutional amendment bill was being discussed in the Parliament, many parliamentarians expressed their concern over the manner of identification of SEBCs. They said, by reading the provisions of the bill, it appeared that state governments were devoid of their power to classify or identify any particular classes/ castes as SEBCs and this power solely vested in the centre. Many moved amendments to this effect. However, the ministry read the provision otherwise. On 03.07.2017 and 14.07.2017, the ministry clarified that the power of the state government to identify the SEBCs was not taken off by virtue of this constitutional amendment.

Call it the draftsman’s inefficiency in expressing the true intent of the government or call it their cleverness in advancing a cause contrary to government’s interests, the 102nd constitutional amendment spelt exactly contrary to what the minister had clarified in the house. The 123rd constitution amendment bill was passed with some clarifications of the concerned ministry and came to be known as the 102nd constitutional amendment.

In another context, the State of Maharashtra enacted a law providing 16% reservation to Maratha community identifying the community as a “backward class”. This move was challenged in a series of writ petitions before the Bombay High Court. Challenging the dismissal of the writ petitions by the High Court, the petitioners moved the Supreme Court. By then, the constitutional validity of the 102nd Constitutional Amendment was also questioned. The Supreme Court, in Dr. Jaishri Laxmanrao Patil vs. The Chief Minister and Others, in a split decision of 3:2 held that the State Governments did not have authority to identify SEBCs by virtue of 102nd Constitutional Amendment and this power vested only with the President, who could act in consultation with the Central Government. The Apex Court held that “151. …there can be no room for doubt that “the central list”, in Article 342A (2) is none other than the list published in Article 342A (1) for the purpose of this Constitution. This means, that after the introduction of these provisions, the final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is firstly with the President, and thereafter, in case of modification or exclusion from the lists initially published, with the parliament.

152. This sequitur is the only reason why change was envisioned in the first place by Parliament, sitting in its constituent capacity, no less, which is to alter the entire regime by ensuring that the final say in the matter of identification of SEBCs would follow the same pattern as it exists, in relation to most backward classes among all citizens (i.e., the SCs and STs, through Article 338, 338A, 341 and 342)…

What the Supreme Court expressed here was that the manner in which the identification of castes in SCs and STs have been taking place since inception would be the same manner in which the identification of SEBCs would take place and this is precisely the purport of the language of 102nd constitutional amendment.

Unanimously, it was held that the 102nd Constitutional Amendment was legal and did not violate the basic structure of the constitution. It was also unanimously held that the 16% reservation to Maratha community was illegal; they did not constitute SEBC, and that the Gaikwad Report, on which such reservation was based, was faulty.

This judgment did make some noise on the floor of the assembly. The judicial interpretation ran contrary to the so-called clarifications issued by the ministry. Some people criticized the judgment on the ground that it violated the federal structure of the country, or that it ran contrary to the law laid down in Indra Sawhney case, etc. Such criticisms held no water, and all these questions are very well answered in the 568-page lengthy judgment of the Supreme Court, only if the critics cared to read it. The NCBC continues to function in the same manner as it held the place since 1993. The list of castes classified as SC/ STs and as OBCs are continued. The power of adding or deleting a caste or community as SC/ ST continues to be with the central government. What held good for SC/ ST now continues to hold good for OBCs. Couldn’t the central government explain this in simple language and leave the matter to rest? Throwing open pragmatic considerations to air and focussing unduly on the oral clarifications given in 2017, the central government made efforts to undo what the Supreme Court did in the Maratha reservation judgment by introducing another constitutional amendment. Thus came the 127th Constitutional Amendment Bill, 2021.

Through this bill, the parliament desired to substitute the words “for the purposes of this constitution” with the words “for the purposes of the central government”. The Supreme Court had placed heavy reliance on the words “for the purposes of this constitution” appearing in Article 342A to drive home the point that a member of the SEBC shall be so identified when declared under a Presidential Notification. The amendment also seeks to add Clause (3) to Article 342A. The definition clause in Article 366 (26C) is also sought to be amended.

In the statement of objects and reasons for the 127th Constitutional Amendment Bill/ 105th Constitutional Amendment Act, it is mentioned that since 1993, every state or UT maintained its own list of SEBCs apart from the ones maintained by the Central Government and therefore in order to clarify that they could so continue with these lists, the amendment is brought about.

On a superficial level, this statement appears prudent and gives the impression that the system would work in the same manner it existed for all these years.

Why then a constitutional amendment? When we amend the constitution and make NCBC a constitutional body, we are moving more towards permanency. The present government has expressed in more words than necessary that it is committed for the sake of upliftment of backward classes through the channel of reservation. Whether reservation is the sole prudent methodology for upliftment of a community is a topic for another day. However, what is discernible is that NCBC is here to stay for long, long enough to tinker with the life of our future generation in India. The government fails to distinguish why the methodology for identification of a caste under the SC/ ST category could be quite different from identification of a caste under the SEBC (commonly called OBC) category. Till date, while the manner of identification and/or discontinuance of a community under SC/ ST had a constitutional backing, SEBCs did not enjoy the same protection. With the present amendment, every state would maintain a separate list of OBCs/ SEBCs apart from that of the centre list, while there would only be a central list for SC/ ST. All these categories (SC, ST and SEBC) are so classified for the purpose of reservation alone and there is virtually no more benefit or protection that these communities enjoy. Why then differentiate between them?

Let us take a look at the resultant effect of this amendment. With the amendment taking effect, every state and UTs will have their own SEBC list. What then is the use of a central SEBC list? Do we have an area that is governed by the centre and not by any state or UT? Certain castes would find its way in the central list apart from finding its mention in the state list. If the states refuse to identify a caste as SEBC, the centre may try to include the same and vice – versa. We are heading for a major debacle. The governments in state and centre would race against each other in including more communities than necessary in the SEBC list with the sole motive to garner votes. Higher the voter influence, better the chances of a community finding its way into the SEBC list. Nothing in the Constitution, including the proposed amendment, empowers the central government to exclude a caste/ community from the SEBC list which the state has included. Every such inclusion would then be brought to court, as if the present burden on courts in reservation matters are less. Sadly, the present 105th constitutional amendment, if challenged, would have to be held constitutionally valid as no part of it either violates any fundamental rights or otherwise alters the basic structure of the constitution. Courts cannot be the answer for failure of legislative wisdom or political prudence or pragmatism, as courts limit itself to legality. This amendment would also open doors for people of SC/ ST community to voice their concern over not permitting the states and UTs to have their own SC/ ST list. Parliament would have to ultimately give in for the pressure, lest it cares nothing more for such voters.

Our constitutional journey so far has glaringly shown the breakdown of democratic institutions when one tinkers with a solemn document such as a constitution for their political gains. But history also tells us that we seldom learn from the mistakes of our forefathers. As Nani Palkhivala once put it, even the Animal Tresspass Act is viewed more seriously and with higher sanctity than the Constitution of India by our politicians. Such is the amount of disregard for the Constitution. Clearly, the present 105th constitutional amendment is opening the door wider for political parties to play caste based politics and for regional parties to promise regional groups with minor interests of reservation, keeping national interests at bay. This would make national parties to advance regional interests rather than compel regional parties to advance national interests.

Is reservation any more prudent in the present society for the upliftment of a backward class? There have been castes enjoying the benefit of reservation being a SEBC from past three decades and there have been castes listed under SC/ ST from past seven decades. How many of them have been uplifted? How many of them have ceased to be a backward community?

I am reminded of the words of Justice RV Raveendran in the case of Ashoka Kumar Thakur vs. Union of India and others[1], in which he said, “Caste has divided this country for ages. It has hampered its growth. To have a casteless society will be realisation of a noble dream. To start with, the effect of reservation may appear to perpetuate caste. The immediate effect of caste-based reservation has been rather unfortunate. In the pre-reservation era people wanted to get rid of the backward tag—either social or economical. But post reservation, there is a tendency even among those who are considered as “forward”, to seek the “backward” tag, in the hope of enjoying the benefits of reservations. When more and more people aspire for “backwardness” instead of “forwardness” the country itself stagnates. Be that as it may. Reservation as an affirmative action is required only for a limited period to bring forward the socially and educationally backward classes by giving them a gentle supportive push. But if there is no review after a reasonable period and if reservation is continued, the country will become a caste divided society permanently. Instead of developing a united society with diversity, we will end up as a fractured society forever suspicious of each other. While affirmative discrimination is a road to equality, care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that the Constitution does not specifically prescribe a casteless society nor tries to abolish caste. But by barring discrimination in the name of caste and by providing for affirmative action, Constitution seeks to remove the difference in status on the basis of caste. When the differences in status among castes are removed, all castes will become equal. That will be a beginning for a casteless egalitarian society.

These words of hope expressed not only the mind of the learned judge but the hope of an entire nation. Despite the warning signs of learned men like Justice Raveendran, politically motivated and nationally disinterested parliament (irrespective of its’ political affiliations) has trodden the wrong path.

The last decade of the 20th century marked a great leap towards a free economy. India is taking its due share in world economy and will grow more in years to come. Gone are the days when one aspired for a public employment for securing a life-time job with retirement benefits. Government can hardly be a competitor in any form of business. Restricting or regulating business and trade practices is the only way of showing its relevance today in area of commerce. How is the government ensuring that the backward classes and members of the SC/ ST community have a role to play in the larger realm of liberalisation, privatisation and globalisation? How many successful companies have been started and how many successful entrepreneurs belong to these SEBC community? Shouldn’t they be as much part of the nation building as any others? No reports of any commissions mention about these prospects even remotely. “No”, introducing reservation in private sector is not the answer! That would sound a death knell on the prospering economy in the same manner it has dented the education system in the country. The reservation and benefits are still based out of a 1981 commission report, which interalia was based out of 1961 census. Many parliamentarians have already voiced their demands for increasing the limit of reservation to more than 50%. Such demands may only grow in future and the government would stand as indifferent as the first ever government stood when it introduced reservation through Article 15 (4).

It is unfortunate that in a country like India which boasts of an ocean of talent, none could think out of the box to push the backward classes out of backwardness in any manner other than reservation! Even if suggestions are made, none has the political will to do it, for every step in national interest are indeed coupled with advancement of political interest. The 105th constitutional amendment would prove to be one such vehicle of the parliament in moving India backwards.

Notes and References

1. The author is a practicing advocate and is a partner of Agraa Legal, a Bangalore based law firm.

2. AIR 1951 SC 226

3. Article 15 (4) reads: “Nothing in this article or in clause (2) of article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and the Schedule Tribes.

4. 1992 SCC Supp (3) 217

5. Article 16 (4A) reads thus: “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion of any class or classes of posts in the services under the State in favour of Schedules Castes and the Schedule Tribes which, in the opinion of State are not adequately represented in the services under the State.

6. Article 341 and 342 deals with Schedule Castes and Schedule Tribes, its identification, etc.

7. Civil Appeal No. 3123 of 2020, connected with other civil appeals and writ petitions

8. Article 342A (3) under the proposed bill states: “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.

9. Article 366 (26C) now proposes to include ‘backward classes so deemed under Article 342A for the purposes of Central Government, State or Union Territory, as the case may be’.

10. 2008 (6) SCC 1

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