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The Five Judge Constitution Bench comprising Justice Hemant Gupta, Justice Nageswara Rao, Justice Ashok Bhushan, Justice S. Abdul Nazeer and Justice Ravindra Bhat have issued a notice to Attorney General in a writ petition challenging the constitutional validity of the 102nd Constitutional Amendment 2018 published in the Gazette of India dated 11.08.2018. 

"Let formal notice be also issued to the learned Attorney General in view of the fact that the validity of the 102nd Constitutional Amendment is challenged in this writ petition.", the order passed in the petition filed through AOR Mr Amol B. Karande, Adv Mr Dilip B. Rode, Adv Mr Mahesh B. Karande & Adv. Mr Pritam C. Rajput states. 

The 102nd Constitutional Amendment, 2018 introduced Art 338 B, which provides for the constitution of a National Commission for Backward Classes & Art 342A as per which, 

"(1) The President may with respect to any State or Union Territory & where it is a State after consultation with the Governor thereof, by public notification, specify the socially & educationally backward classes which shall for the purposes of this Constitution be deemed to be socially & educationally backward classes in relation to that State or Union Territory, as the case may be. 

(2) Parliament may by law include in or exclude from the Central List of socially & educationally backward classes specified in the notification issued under clause (1) any socially & educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."

The Bench is hearing a plea challenging 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. 

Initially, the principal question that arose for consideration before the Constitution Bench was an interpretation of the 102nd Constitutional Amendment. 

In this context, Sr Adv Mr Mukul Rohatgi earlier submitted that interpretation of Art 342 A was capable of affecting the legislative competence of the State as the writ petitioner in the Bombay High Court pressed on the fact that the 102nd Constitutional Amendment by inserting Article 342A, denuded the State legislature with the competence to legislate with regard to reservation of economically and socially backward communities. He also submitted that the constitutional powers under Articles 15 and 16 could not be taken away from the legislative competence of the State. 

Thereafter, upon Attorney General's endorsement that the States might be affected by the Court's interpretation in the present matter, the Bench issued notice to all the states to allow them to make their submissions with respect to interpretation of 102nd Constitutional Amendment. 

Further, the Bench, along with framing issues, framed the issue of whether the Constitution One Hundred and Second Amendment deprived the State Legislature of its power to enact legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?

Thus, keeping the background of the facts into consideration, the WP(C) 923/2020 was tagged with the plea, Jaishri Laxman Rao Patil v. The Chief Minister & Ors (Civil Appeal No. 3123/2020). 

The petition will now be heard in the coming week starting from March 22, 2021, & the Bench has also directed the Learned counsel for the petitioner to serve a copy of the petition in the learned Solicitor General's office.