In the decision of Jaishri Laxmanrao Patil vs The Chief Minister and Ors. , Supreme Court considered the validity of the Constitution (One Hundred and Second Amendment) Act, 2018 which, inter alia, inserted Articles 366(26-C) and 342-A.
As a result of this amendment, the President alone, to the exclusion of all other authorities, is empowered to identify socially and educationally backward classes and include them in a list to be published under Article 342-A (1), which shall be deemed to include SEBCs in relation to each State and Union territory for the purposes of the Constitution.
The said amendment was challenged, inter alia, on the ground that the same was not ratified by at least half of the States and that it was striking at the federal structure of the Constitution.
While rejecting the challenge, the Court held that there was no breach of the basic structure of the Constitution. Some of the relevant questions formulated in that case and the opinions expressed could be usefully reproduced as under: –
“7.4. (4) Whether the Constitution (One Hundred and Second) Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power? 7.5.
(5) Whether, States’ power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342-A read with Article 366(26-C) of the Constitution of India?
(6) Whether Article 342-A of the Constitution abrogates States’ power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy/structure of the Constitution of India?”
The court said that,
“182. This Court is also of the opinion that the change brought about by the 102nd Amendment, especially Article 342-A is only with respect to the process of identification of SEBCs and their list. Necessarily, the power to frame policies and legislation with regard to all other matters i.e. the welfare schemes for SEBCs, setting up of institutions, grants, scholarships, extent of reservations and special provisions under Articles 15(4), 15(5) and 16(4) are entirely with the State Government in relation to its institutions and its public services (including services under agencies and corporations and companies controlled by the State Government).
In other words, the extent of reservations, the kind of benefits, the quantum of scholarships, the number of schools which are to be specially provided under Article 15(4) or any other beneficial or welfare scheme which is conceivable under Article 15(4) can all be achieved by the State through its legislative and executive powers.
This power would include making suggestions and collecting data — if necessary, through statutory commissions, for making recommendations towards inclusion or exclusion of castes and communities to the President on the aid and advice of the Union Council of Ministers under Article 342-A. This will accord with the spirit of the Constitution under Article 338- B and the principle of cooperative federalism which guides the interpretation of this Constitution.
193. By these parameters, the alteration of the content of the State legislative power in an oblique and peripheral manner would not constitute a violation of the concept of federalism. It is only if the amendment takes away the very essence of federalism or effectively divests the federal content of the Constitution, and denudes the States of their effective power to legislate or frame executive policies (co-extensive with legislative power) that the amendment would take away an essential feature or violate the basic structure of the Constitution.
Applying such a benchmark, this Court is of the opinion that the power of identification of SEBCs hitherto exercised by the States and now shifted to the domain of the President (and for its modification, to Parliament) by virtue of Article 342-A does not in any manner violate the essential features or basic structure of the Constitution. The 102nd Amendment is also not contrary to or violative of proviso to Article 368(2) of the Constitution of India. As a result, it is held that the writ petition is without merit; it is dismissed.
194.5. Re Point (5): Whether, States’ power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342-A read with Article 366(26-C) of the Constitution of India?
On these two interrelated points of reference, my conclusions are as follows:
194.5.5. 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.
194.6. Re Point (6): Article 342-A of the Constitution by denuding the 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.
686. We do not find any merit in the challenge to the Constitution 102nd Amendment. The Constitution 102nd Amendment does not violate any basic feature of the Constitution. The argument of the learned counsel for the petitioner is that Article 368 has not been followed since the Constitution 102nd Amendment was not ratified by the necessary majority of the State.
Parliament never intended to take the rights of the State regarding identification of backward classes, the Constitution 102nd Amendment was not covered by the proviso to Article 368 clause (2), hence, the same did not require any ratification. The argument of procedural violation in passing the 102nd Constitutional Amendment cannot also be accepted. We uphold the Constitution 102nd Amendment interpreted in the manner as above.”