Constitution (105th Amendment) Act Deemed To Be In Force From 15th August, 2021; Power To Identify SEBCs Back To State Govts And UTs

The Constitution (One Hundred and Fifth Amendment) Act, 2021 has come into force from 15th August, 2021, a recent notification of the Ministry of Social Justice and Empowerment provides. The 105th Amendment Act which received the assent of the President last month restores the power of the State Governments and Union Territories to identify and specify Socially and Economically Backward Classes (SEBCs).

Background of 105th Amendment Act

The National Commission for Backward Classes (NCBC) was established under the National Commission for Backward Classes Act, 1992. The 102nd Constitutional Amendment Act, 2018 while giving constitutional status to NCBC also empowered the President to notify the list of SEBCs for any state or union territory for all purposes. Prior to 102nd Amendment Act, the prevalent practice was that States and Union would specify their own lists respectively called state list and union list.

In the months after the 102nd Amendment Act, 2018 came into force, the Maharashtra legislature passed a law recognising Marathas as a Socially and Educationally Backward Class and provided them the benefit of reservation. Subsequently, in Jaishri Laxmanrao Patil vs Union of India (Maratha Quota Case), the power of the Maharashtra legislature to pass a law recognising the Marathas as SEBC came to be challenged. The Supreme Court of India was hearing an appeal against the impugned judgement of Bombay High Court which upheld the validity of the Act. A Constitution Bench of the Supreme Court, by 3:2 majority, held that States lacked the power to identify and specify SEBCs after the 102nd Constitution Amendment Act. The majority judgment held that after the introduction of Articles 338B and 342A to the Constitution “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”.

105th Constitution Amendment Act

The 105th Constitution Amendment Act overrides the interpretation given by the Supreme Court of India in Maratha Quota Case by clarifying that the State Government and the Union Territories are empowered to prepare and maintain their own State List/ Union territory list of SEBCs. Further, it clarifies that the President may notify the list of SEBCs only for the purposes of the Central Government.

Specifically, the 105th Constitution Amendment Act amends Article 342A to state that the power of the President to specify the socially and educationally backward classes in the Central List for the purposes of the Central Government. It also adds clause (3) to Article 342A, which clarifies that states and union territories will have the power to identify and specify SEBCs for their own purposes and that such list may differ from the Central list.

Read/ Download the Constitution (One Hundred and Fifth) Amendment Act, 2021 here.

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