102nd Constitutional Amendment Act, 2018

The Constitution (One Hundred and Second Amendment) Act, 2018 is an important constitutional development in the field of social justice and reservation law in India. This amendment granted constitutional status to the National Commission for Backward Classes (NCBC) and inserted new provisions relating to socially and educationally backward classes (SEBCs).

The amendment also led to significant constitutional interpretation by the Supreme Court of India in 2021 in the context of the Maharashtra reservation law for the Maratha community.

This article provides a detailed and structured analysis of the 102nd Constitutional Amendment Act, 2018, including its legislative history, constitutional changes, powers of the NCBC, and judicial interpretation.

Background: Status of Backward Classes Before the 102nd Amendment

Before the 102nd Amendment, the National Commission for Backward Classes (NCBC) was a statutory body. It was established under the National Commission for Backward Classes Act, 1993. Unlike the National Commission for Scheduled Castes (Article 338) and the National Commission for Scheduled Tribes (Article 338A), the NCBC did not enjoy constitutional status.

Backward classes, particularly Other Backward Classes (OBCs), form a significant part of India’s reservation framework. However, the absence of constitutional status for the NCBC meant that its powers and authority were comparatively limited.

The 102nd Constitutional Amendment sought to address this gap by elevating the NCBC to the level of a constitutional body.

Legislative History of the 102nd Constitutional Amendment

The amendment process began with the introduction of the Constitution (One Hundred and Twenty-third Amendment) Bill, 2017 in the Lok Sabha on 5 April 2017. The Bill was introduced by Thawar Chand Gehlot, the then Minister of Social Justice and Empowerment.

Passage in the Lok Sabha

The Bill was passed by the Lok Sabha on 10 April 2017. After its passage, it was introduced in the Rajya Sabha the following day.

Reference to Committee

In the Rajya Sabha, a motion was adopted to refer the Bill to a Standing Committee consisting of 25 members. The Committee was chaired by Bhupender Yadav.

The Select Committee submitted its report to the Rajya Sabha on 19 July 2017.

Amendments and Final Passage

The Rajya Sabha passed the Bill on 31 July 2017 with one amendment. The Bill was sent back to the Lok Sabha for concurrence. However, the Lok Sabha did not accept the amendment made by the Rajya Sabha. Instead, it adopted alternate amendments and passed the Bill on 2 August 2018.

The revised Bill was then sent again to the Rajya Sabha. On 8 August 2018, the Rajya Sabha passed it unanimously, receiving 156 votes in favour from all members present and voting.

Presidential Assent and Notification

The Bill received the assent of President Ram Nath Kovind on 11 August 2018. It was notified in The Gazette of India on the same date and became the Constitution (One Hundred and Second Amendment) Act, 2018.

Constitutional Changes Introduced by the 102nd Amendment

The 102nd Amendment introduced significant changes to the Constitution of India. These changes included:

1. Amendment of Article 338
2. Insertion of Article 338B
3. Insertion of Article 342A
4. Amendment of Article 366

Each of these changes is analysed below.

Amendment to Article 338

Article 338 originally deals with the National Commission for Scheduled Castes.

The 102nd Amendment modified clause (10) of Article 338. The words relating to “other backward classes” specified by the President under Article 340 were omitted. This deletion was necessary because a separate constitutional mechanism for backward classes was being introduced through Article 338B.

Insertion of Article 338B: Constitutional Status to NCBC

One of the most important aspects of the 102nd Amendment is the insertion of Article 338B, which establishes the National Commission for Backward Classes as a constitutional body.

Article 338B(1) provides that there shall be a Commission for the socially and educationally backward classes to be known as the National Commission for Backward Classes.

Composition

The Commission consists of:

• A Chairperson
• A Vice-Chairperson
• Three other Members

The conditions of service and tenure are to be determined by the President by rules.

Insertion of Article 342A: Specification of SEBCs

Article 342A introduces a constitutional procedure for identifying socially and educationally backward classes.

Under Article 342A(1), the President may, by public notification, specify socially and educationally backward classes for any State or Union Territory. In the case of a State, consultation with the Governor is required.

Article 342A(2) provides that Parliament may by law include or exclude any class from the Central List of SEBCs. However, once the President issues a notification, it cannot be altered by any subsequent executive notification.

This provision centralised the power relating to the Central List of SEBCs at the constitutional level.

Amendment to Article 366

The amendment inserted clause (26C) in Article 366. It defines “socially and educationally backward classes” as such backward classes as are deemed under Article 342A.

This provides constitutional clarity and uniformity in terminology.

Judicial Pronouncement: Maratha Reservation Case (2021)

A major constitutional interpretation of the 102nd Amendment took place in 2021.

In the case relating to the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, the Supreme Court of India examined the validity of reservation granted to the Maratha community in public education and employment.

The law sought to extend reservation benefits to the Maratha community by treating them as socially and educationally backward classes.

On 5 May 2021, the Supreme Court upheld the validity of the 102nd Constitutional Amendment. The Court examined the scope and implications of Articles 338B and 342A.

The decision had significant constitutional implications regarding the interpretation of Article 342A and the power to identify SEBCs. The case clarified the constitutional position emerging from the 102nd Amendment.

The judgement became an important milestone in the interpretation of federal powers in the context of backward class identification and reservation policy.

Conclusion

The Constitution (One Hundred and Second Amendment) Act, 2018 marks a major constitutional development in India’s framework of social justice and reservation policy.

By granting constitutional status to the National Commission for Backward Classes and inserting Articles 338B and 342A, the amendment strengthened institutional safeguards for socially and educationally backward classes. It also introduced a constitutional mechanism for identification of SEBCs and clarified the reporting and advisory role of the NCBC.

The Supreme Court’s decision in the Maharashtra SEBC Act case in 2021 further highlighted the constitutional importance of the 102nd Amendment and clarified its legal implications.