105th Constitutional Amendment Act

The Constitution of India, often described as a living document, has the ability to adapt to the changing needs of the country through amendments. Article 368 empowers the Parliament to amend the Constitution, allowing it to add, repeal, or vary provisions in response to societal and political developments. One such important amendment is the 105th Constitutional Amendment Act, 2021. 

This amendment plays a crucial role in restoring the powers of State Governments to recognise Socially and Educationally Backward Classes (SEBCs), popularly known as Other Backward Classes (OBCs). It came into being following a landmark Supreme Court judgement that significantly curtailed State powers in this domain, leading to political and social debates necessitating a constitutional correction.

Historical Background: Understanding the Roots

To comprehend the significance of the 105th Amendment, it is essential to understand the history of reservation policies and constitutional provisions related to SEBCs in India.

Early Reservation Efforts

• The idea of affirmative action for backward classes dates back to the early 20th century when Shahuji Maharaj, the ruler of Kolhapur, extended reservations to Dalits and other socially disadvantaged communities in 1902.
• Tamil Nadu also pioneered caste-based reservations from 1947, even before India’s independence.

Mandal Commission and Indra Sawhney Judgement

• The Mandal Commission report in 1980 was a watershed moment, recommending reservations for OBCs in government jobs and education.
• The Supreme Court’s Indra Sawhney & Others v. Union of India (1992) judgement upheld the Mandal Commission’s recommendations. Importantly, the Court recognised that both the Union and State Governments had the authority to identify and grant reservations to backward classes through separate lists.
• The Court also imposed a 50% ceiling on total reservations and introduced the concept of excluding the “creamy layer” — the socially advanced members within backward classes.

Formation of NCBC

• Following the Indra Sawhney judgement, the Parliament established the National Commission for Backward Classes (NCBC) in 1993 as a statutory body to oversee and advise on the inclusion and exclusion of communities in the SEBC lists.

The 102nd Constitutional Amendment Act, 2018: Centralisation of Power

In 2018, the Parliament passed the 102nd Constitutional Amendment Act which brought significant changes:

• The NCBC was given constitutional status by inserting Article 338B.
• Article 342A empowered only the President of India to notify the Central List of SEBCs. This Central List could be amended only by the Parliament.
• Although debates during the passage of this Amendment suggested that State lists would continue, the text of the Amendment did not explicitly safeguard the powers of State Governments to recognise SEBCs independently.

This ambiguity set the stage for future legal challenges and interpretative conflicts.

The Maratha Quota Case: Jaishri Laxmanrao Patil v. Maharashtra (2021)

The real trigger for the 105th Amendment was the Supreme Court’s judgement in the Maratha Quota Case.

Facts of the Case

• The Maharashtra State Government passed the Socially and Educationally Backward Classes (SEBC) Act, 2018, which granted the Maratha community a 16% reservation in education and government employment.
• The Bombay High Court initially stayed the implementation of this law.
• The State Backward Class Commission had recommended lower quotas — 12% in education and 13% in employment — but the State Legislature increased these quotas to 16%.

Issues Raised

• Whether the Maharashtra government had the power to identify SEBCs after the 102nd Amendment.
• Whether the SEBC Act, 2018, violated Articles 15(4) and 16(4) of the Constitution.
• Whether the 50% ceiling on reservations set by the Indra Sawhney judgement could be exceeded.

Supreme Court Judgement

• By a 3:2 majority, the Supreme Court held that following the 102nd Amendment, only the Union Government and the President had the power to identify SEBCs.
• The Court struck down Maharashtra’s SEBC Act, 2018, ruling it unconstitutional.
• It reaffirmed the 50% cap on reservations, holding that exceptions to this ceiling require “extraordinary circumstances,” which the State failed to establish.
• The judgement effectively curtailed State powers to recognise SEBCs, which caused significant concern across political parties and backward class communities.

The decision created a crisis as many State lists of OBCs became vulnerable to challenge, jeopardising the rights and benefits of numerous communities.

Need for the 105th Constitutional Amendment

The 105th Amendment was introduced to correct the constitutional imbalance created by the Supreme Court’s interpretation of the 102nd Amendment.

• The Government clarified that the 102nd Amendment was intended to establish a Central List for the Union Government alone and did not intend to remove State powers.
• Many backward communities, especially those listed only in State lists, risked losing reservation benefits if State Governments were divested of their power.
• Around 650 communities listed by various States stood to be adversely affected.
• The political consensus strongly favoured restoring the State Governments’ rights to prepare and maintain their own lists of socially and educationally backward classes for their own purposes.

Thus, the 105th Amendment was necessary to preserve the federal character of reservation policy and protect the interests of backward communities across India.

Legislative Journey and Passage of the 105th Amendment

• The Bill was introduced as the 127th Constitutional Amendment Bill, 2021 on 9th August 2021 by Dr. Virendra Kumar, Minister for Social Justice and Empowerment.
• The Bill’s objective was to clarify that State Governments and Union Territories could maintain their own SEBC lists independent of the Central List.
• On 10th August 2021, the Bill was passed unanimously in the Lok Sabha.
• On the very next day, 11th August 2021, it was passed unanimously in the Rajya Sabha.
• The President gave assent on 18th August 2021, and the Act was notified on 19th August 2021.
• It was deemed effective retrospectively from 15th August 2021.

Key Provisions of the 105th Amendment

Section 1: Short Title and Commencement

• The Act may be called the Constitution (One Hundred and Fifth Amendment) Act, 2021.
• It shall come into force on a date notified by the Central Government.

Section 2: Amendment to Article 338B

• Inserts a proviso in Clause (9) of Article 338B.
• This proviso clarifies that the National Commission for Backward Classes’ consultation powers do not apply to State or Union Territory lists of SEBCs under Article 342A(3).

Section 3: Amendment to Article 342A

• Modifies Clauses (1) and (2) to restrict the meaning of SEBCs to those in the Central List for Central Government purposes only.
• Inserts Clause (3) explicitly allowing States and Union Territories to prepare and maintain their own SEBC lists, which may differ from the Central List.

Section 4: Amendment to Article 366

Inserts Clause (26C), defining socially and educationally backward classes for both Central and State/UT purposes.

Impact on Federalism and Reservation Policy

The 105th Amendment reinforces the delicate balance of India’s federal structure in several ways:

• Restores State Autonomy: State Governments regain the power to identify and classify backward classes within their jurisdiction, crucial for local socio-economic realities.
• Protects Reservation Rights: Prevents thousands of communities from losing their access to reservations in education and employment due to the restrictive Supreme Court ruling.
• Increases Responsiveness: State Backward Classes Commissions can swiftly address and update backwardness criteria, allowing affirmative action policies to remain effective and current.
• Reduces Litigation: By clarifying the division of power, the Amendment is likely to prevent future constitutional challenges regarding SEBC lists.

Judicial Considerations Post-Amendment

While the Amendment clearly restores State powers, the Supreme Court has also clarified:

• The 105th Amendment does not have explicit retrospective effect. Hence, State laws passed before the Amendment, if challenged, will be judged on their own merits.
• States retain the power to modify the quantum or classification of reservations for communities already recognised as SEBCs.

Distinction Between 102nd and 105th Amendments

Conclusion

The 105th Constitutional Amendment Act, 2021 stands as a significant corrective measure, realigning constitutional provisions with India’s federal ethos. By restoring the powers of State Governments to recognise and maintain their own lists of socially and educationally backward classes, the Amendment safeguards the interests of numerous backward communities.