The Supreme Court has dismissed the Centre's plea seeking review of the May 5 majority verdict which held that 102nd Constitution amendment took away states' power to declare Socially and Educationally Backward Classes (SEBC) for grant of quota in jobs and admissions. The 102nd Constitution amendment Act of 2018 inserted Articles 338B, which deals with the structure, duties and powers of the NCBC, while 342A deals with power of the President to notify a particular caste as SEBC and power of Parliament to change the list. A five-judge bench headed by Justice Ashok Bhushan said, We have gone through the review petition filed against the judgment dated May 5, in Writ Petition… The grounds taken in the review petition do not fall within the limited ground on which review petition can be considered. The bench, also comprising Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, said that the various grounds taken in the review petition have already been dealt with in the main judgment. We do not find any sufficient grounds to entertain this review petition. The review petition is dismissed, the bench said in its order uploaded on Thursday.
The top court also rejected the Centre's application for open court hearing in the matter. On June 28, the five-judges had taken up the matter in chambers. Justice Bhushan who was set to retire on July 4, had bid adieu to the top court on Wednesday to attend the post-last rites ritual of his mother, who passed away last week. On May 13, the Ministry of Social Justice and Empowerment had issued a press release saying that the Centre has filed a review petition against the May 5 verdict of the top court. On May 5, a five-judge Constitution bench headed by Justice Ashok Bhushan had unanimously set aside Maharashtra law granting quota to Marathas and had refused to refer the 1992 Mandal verdict putting a cap of 50 per cent on reservation to a larger bench. The bench in its 3:2 majority verdict had ruled that 102nd Constitution amendment, which also led to setting up of National Commission for Backward Classes (NCBC), gives exclusive power to the Centre to identify and declare SEBC as only the President can notify the list. All the five judges of the bench, however, had held the amendment as valid and said it did not affect the federal polity or violate the basic structure of the Constitution.
The Centre in its review plea has said that the majority verdict had upheld the validity of Article 342A but in doing so, the bench has interpreted that the provision denudes the states from exercising the power which they undoubtedly have for identifying and declaring SEBC in their respective states. The government in its plea had said that the minority of two judges, including presiding judge, has expressly held that Article 342A does not have in any manner deprive states of their power and jurisdiction and competence to identify and declare the socially and educationally backward classes, which is the correct interpretation of Article 342A of the Constitution. The majority verdict was rendered by Justices L Nageswara Rao, Hemant Gupta and S Ravindra Bhat, while the minority verdict was of Justice Ashok Bhushan and S Abdul Nazeer, who said that under the constitution amendment both Centre and states have power to declare and identify SEBC. Justice S Ravindra Bhat had written a 132-page long verdict and Justices L Nageswara Rao and Hemant Gupta, in their separate judgements, concurred with Justice Bhat and his reasoning in holding that states have lost their power to identify SEBC under their territory after 102nd Constitutional amendment. Writing the majority judgement on this aspect, Justice Bhat had said, Articles 366 (26C) and 342A through the 102nd Constitution, the President alone, to the exclusion of all other authorities, is 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". Justice Bhat had opined that the states can, through their existing mechanisms, or even statutory commissions, can only make suggestions to the President or the Commission, for "inclusion, exclusion or modification of castes or communities" in the SEBC list. "The states' power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 – except with respect to identification of SEBCs, remains undisturbed," the judgement, endorsed by two other judges had said. "Article 342A of the Constitution by denuding states' power to legislate or classify in respect of 'any backward class of citizens' does not affect or damage the federal polity and does not violate the basic structure of the Constitution of India, Justice Bhat had said. The five-judge bench has also concurred on the issue that the Maharashtra law granting 12 and 13 per cent reservation for Maratha community in addition to 50 per cent social reservation is not covered by exceptional circumstances as contemplated in Mandal judgement.
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