The Constitution (One Hundred and Fifth Amendment) Act, 2021 came into effect on 15 August 2021, as stated in the latest mandate of the Ministry of Social Justice and Empowerment. The 105th Amendment Act, which received the President’s approval, last month, restores the power of State Governments and Union Territories to identify the Socially and Economically Backward Classes (SEBCs).
Background of 105th Amendment Act
The 102nd Constitutional Amendment Act, 2018 gave constitutional status to The National Commission for Backward Classes (NCBC), which was established under the National Commission for Backward Classes Act, 1992. Apart from giving constitutional status to NCBC, the amendment also empowered the President to notify and specify the list of SEBCs for any state or union territory for all purposes. This changed the prevalent practice of the States and Union to specify their own lists respectively called state lists and union lists.
Soon after the 102nd Amendment Act, 2018 came into force, the Maharashtra legislature passed a law that recognized the Marathas as SEBCs and provided them the benefit of reservation. This was subsequently challenged in the case- Jaishri Laxmanrao Patil vs Union of India (Maratha Quota Case). The Supreme Court of India was hearing an appeal against the Bombay High Court’s decision which upheld the validity of the Act. The Constitutional bench of the Supreme Court, at 3: 2 in the majority, stated that States lacks the power to identify SEBCs after the 102 Constitution Amendment Act. The decision of the majority stated that after the introduction of Articles 338B and 342A in the Constitution “the final word concerning the exclusion or inclusion (or modification) of SEBCs first rests with the President, and thereafter, in case of exclusion or modification from the previously published list, with the Parliament”.
105th Constitution Amendment Act
Constitution 105th Amendment Act overrides the definition given by the Supreme Court of India in the Maratha Quota case stating that the State Government and the Union Territories have been empowered to prepare and maintain their own State List / Union list of SEBCs. In addition, it specifically amends Article 342A to stipulate that the President may only specify the list of SEBCs for the purpose of the Central Government. It also adds subsection (3) to Article 342A, which stipulates that the states and the union territories will have the power to identify and specify the SEBCs for their purposes and that this list may differ from the central list.