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The Union Government on Thursday moved Supreme Court by way of a review petition against its order dated May 5 in which the Court with a majority of 3:2 had observed that the President alone, to the exclusion of all other authorities, was empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution.

A statement by the Union Ministry of Social Justice & Empowerment had said, “The Constitution Bench of the Hon’ble Supreme Court has pronounced judgement dated May 5, 2021 involving interpretation of the provisions of the 102nd Constitution Amendment Act, 2018. As provided in the Supreme Court Rules, 2013, a review petition has been filed by the Union of India on May 13, 2021”. 

The Union Government on its review petition has contended that the judgement required a relook because there were errors apparent on the face of the record & has also asked for an open court hearing so as to enable the Govt to make oral submissions on the ground of review.

The majority (Justice S Ravindra Bhatt, Justice LN Rao & Justice Hemant Gupta) observed that, “The states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published under Article 342A (1).”

Whereas Justice Ashok Bhushan (with Justice Abdul S Nazeer) while upholding the Constitutionality of 102nd Constitutional Amendment however dissented with the majority & observed that the 102nd Constitutional Amendment did not take away State’s power to identify Backward Classes.

The issues that arose for consideration while the Bench was adjudicating the appeals arising from a common judgement of the Bombay High Court regarding the Constitutionality of Maharashtra State Reservation (of Seats for admissions in Educational Institutions in the State and appointments in the Public Services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 were whether the Constitution 102nd Amendment deprived the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power, whether States power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) was anyway abridged by Article 342(A) r/w Article 366(26c) of the Constitution of India & whether Article 342A of the Constitution abrogated States power to legislate or classify in respect of “any backward class of citizens” and thereby affected the federal policy / structure of the Constitution of India. 

The Court observed that reference to the Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all purposes of the Constitution, in relation to each state and in relation to every union territory. 

“The use of the term “the Central List” is only to refer to the list prepared and published under Article 342A (1), and no other; it does not imply that the states have any manner of power to publish their list of SEBCs. Once published, under Article 342A (1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A (2).”

In his divergent judgement, Justice Bhushan while relying on the Parliamentary intention discernible from the report of Select Committee & statement of Minister of Social Justice & Empowerment observed that Parliament’s intention for bringing Constitutional amendment was not to take away the power of the State to identify backward class in the State.

“The word ‘Central’ in Article 342A (2) was used for purpose and object. The use of ‘Central’ was only with the intent to limit the list issued by the President to Central services. Article 342A refers to 'Central List' which is prepared for services under the Government of India and organisations under the Government of India, the definition given under Article 366(26C) which specifically refer to Article 342A has to be read together and list of backward classes which is not Central List shall not be governed by the definition under Article 366(26C). Since, the (26C) has been inserted in the context of Article 342A, if the context is a list prepared by the State and it is State List, definition under (26C) shall not govern.”, Justice Ashok Bhushan observed in his dissenting judgement. 

It was also observed that Article 342A was brought by Constitution 102nd Amendment to give constitutional status to National Backward Classes Commission and for publication of a list by the President of socially and educationally backward classes which was to be Central List for governing employment under Government of India and the organisations under it.

The Court also noted that in the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it. 

“If the commission prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, under Article 342A (1), by reason of Article 367 read with Section 3 (8) (b) General Clauses Act).”, the Court remarked.

Justice Ashok Bhushan on the other hand observed that the consultation by the State on all policy matters affecting the socially and educationally backward classes is now mandatory as per sub- clause(9) of Article 338B which mandatory requirement cannot be by-passed by any State while the State takes any major policy decision.

“Sub-clause (9) of Article 338B uses the expression ‘consultation’. It is true that the expression ‘consultation’ is not to be read as concurrence but the ‘consultation’ has to be effective and meaningful. The object of consultation is that ‘consultee’ shall place the relevant material before the person from whom ‘consultation’ is asked for and advice and opinion given by consulting authority shall guide the authority who has asked for consultation.”, Justice Bhushan further observed.