The Attorney General told the Supreme Court on Thursday that the 102nd amendment to the Constitution does not deprive state legislatures to enact law determining the Socially and Educationally Backward Classes (SEBC) and conferring benefits on them.
The 102nd Constitution Amendment Act of 2018 inserted Articles 338B, which deals with the structure, duties and powers of the National Commission for Backward Class (NCBC), and 342A dealing with the power of the President to notify a particular caste as SEBC as also of Parliament to change the list.
A five-judge Constitution bench headed by Justice Ashok Bhushan was told by Attorney General K K Venugopal that in his opinion state government has independent powers and has never been touched under Article 342A of the Constitution.
"To construe 102nd amendment will exclude States from exercising power is not justified because there is no attempt to modify Articles 15(4) and 16(4) of the Constitution which has declared that power to identify backward classes lies both with the State and the Centre," Venugopal said.
He submitted before a bench, also comprising Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, that unless Articles 15 (4) and 16 (4) are amended and states are denuded of the right to identify backward classes, it would not be right to construe Article 342A as denuding the state's rights.
The bench, which is dealing with a batch of pleas challenging the validity of Maharashtra law granting quota to Marathas is examining the question of whether the Indra Sawhney judgement of 1992, also known as the Mandal Verdict, put a cap of 50 per cent on total reservation quota, needs a re-look by a larger bench.
In the case of Maratha reservation, rejected by NCBC, Marathas are not backward as per the Centre, Venugopal said, adding that notwithstanding this the state can have its own criteria.
He said state's powers are not touched on determining the socially and backward classes and their rights remain untouched by the 102nd amendment and would continue.
Venugopal said that a central list will apply to central government public undertakings and officers such as railways and others in the state, and the union government does not accept blindly the identification made by the state.
He said that suppose reservation is being made in educational institutions like IITs and IIMs situated in various states, then for that Central list of SEBC has to be prepared.
"So far as Articles 15 (4) and 16 (4) of the constitution is concerned they would remain untouched and undisturbed by Article 342A and the two articles stand compartmentalised," he said, adding that the amendment is not meant to affect state powers of inclusion and exclusion in lists of backward classes.
The top law officer of the country said that it is inconceivable that any such amendment would be brought into force by the Centre which would have the effect that no State would be having the power to identify SEBC.
He said that if the Centre decides to denude the states from making their own list of SEBC, then an express provision would have to be made.
The AG concluded his arguments and the hearing in the matter would continue on Friday with submissions of the Maharashtra government.
On Wednesday, the top court was told that Marathas have been dominant "socially and politically" as almost 40 per cent of MPs and MLAs of Maharashtra are from this community and the entire hypothesis that they have been left behind faced historical injustice is completely flawed.
The top court has been hearing a clutch of cases challenging the Bombay High Court verdict which upheld the grant of quota to Marathas in admissions and government jobs in the state.
The top court had observed earlier that if the argument that after the 102nd amendment of the Constitution only Parliament can prepare one "Central" list of SEBC is accepted, then Maharashtra law granting quota to Marathas' cannot be passed as it would be beyond the state's legislative competence.
On Monday, the petitioners opposing Maratha reservation law said that changing the 50 per cent quota cap for SEBC as fixed by the 1992 judgement will be like having a society founded on a case and not equality.
They had opposed revisiting the 1992 Indira Sawhney verdict by a larger bench of 11-judges.
On March 8, the top court had framed five questions to be taken up by the Constitution bench, including whether the 'Mandal verdict' require a re-look by a larger bench "in the light of subsequent Constitutional amendments, judgments and changed social dynamics of the society".
It had issued notices to all the states on issues of "seminal importance", including whether the 102nd amendment deprives the state legislatures of its power to enact a law determining the socially and economically backward classes and conferring benefits to them under its enabling power.
The issue of interpretation of the amendment cropped up before the bench, which is hearing a batch of pleas pertaining to the 2018 Maharashtra law granting reservation to Marathas in education and jobs.
