"We the People of India, having solemnly resolved

to constitute India into

SOVEREIGN. SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC

and to secure all its citizens

JUSTICE, social, economic and political…"

The Preamble to the Indian Constitution says that Justice in all spheres i.e. social, economic and political shall be provided to all the citizens. Social justice connotes that there should be equal treatment of all citizens without any social distinction on caste, colour, race, religion or gender; in other words, it means no special privilege to be given to the persons by virtue of their respective caste, colour, gender etc. Furthermore, it also suggests that certain privileges can be granted for the improvement of condition of Backward Classes. The Article 14 to Article 18 of the Indian Constitution provides tooth to the abovementioned idea.

The Article 14 of the Indian Constitution is the genus and Article 15 is its species. According to the Article 14 "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India"; the latter part of the provision "equal protection of the laws" enables the government to make special provision for the upliftment of the backward classes. The Article 15(4) is the application of Article 14; it says that the State can make a special provision for the advancement of socially and educationally backward classes. However, the provision does not define "socially and educationally backward classes" and also the basis of determination; this has been decided by the Supreme Court in various cases.

Recently, there has been a sibilating regarding the 127th Constitutional Amendment Bill, 2021. The chronology of events which led to 127th amendment has been discussed as follows:

1)      The Hundredth and Two Constitutional Amendment:

The 102nd Constitutional Amendment Bill, 2018 inserted Article 338B and Article 342A to the Constitution of India. The insertion of Article 338B conferred the constitutional status to the National Commission for Backward Classes (NCBC). However, the insertion of Article 342A became the root of cause turmoil. The Article 342A says that "The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be." The interpretation of the said provision caused confusion; the use of word "shall" in the provision suggested that State Government's power to recognize "socially and educationally backward classes" has been taken away and only President can notify the same. However, the Centre's justification was that it didn't intend to do so and hence the following case.

2)      Supreme Court Judgment on Maratha Reservation:

On May 5, 2021 Supreme Court in the case of Shiv Sangram v. Union of India and Ors famously known as Maratha Reservation case; involved various issues along with the interpretation of 102nd amendment to the constitution. The Supreme Court of India by 3:2 majority in this case held "By introduction of 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.” In other words, the 102nd amendment takes away the State's power to recognize SEBCs (socially and educationally backward classes) and it could only suggest modifications to the list. The Centre filed the review petition on May 13, 2021 regarding the matter which was dismissed by the Apex Court in its judgment on 28th June 2021.

The abovementioned prominent events led to the 127th Constitutional Amendment Bill, 2021.

One Hundredth and Twenty-Seven (127th) Constitutional Amendment Bill, 2021

The Rajya Sabha on 11th August, 2021 passed the 127th Constitutional Amendment Bill which is due for presidential assent. The present Amendment Bill seeks to restore State's power to recognize SEBCs which had been taken away by the Apex Court's judgment.

The legislative intent behind the introduction of the Bill was that before the formation of NCBC in 1993 and recognition of SEBCs for purpose of Centre List, States had their own list of SEBCs for the respective advancement. In order to restore such power to the States i.e. to maintain their own SEBC list, the following amendments has been made by the present Bill.

Previous text:

"Article 342A (1): The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be."

After Amendment:

"Article 342A (1): The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify “the socially and educationally backward classes in the Central List which shall for the purposes of the Central Government” be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be."

The explanation after clause 1 and the clause 3 has also been added by the amendment which is as follows:

‘Explanation: For the purposes of clauses (1) and (2), the expression “Central List” means the list of socially and educationally backward classes prepared and maintained by and for the Central Government.

(3) Notwithstanding anything contained in clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List.’

The Centre in clarification to the Amendment bill said that this amendment was necessary to maintain the federal structure of the country. They further clarified that the purpose of the amendment was to adequately clarify that the governments of State and Union Territory have power to maintain their respective SEBCs list.

The present legal status regarding SEBCs reservation is that, Centre and State Government will have their separate SEBCs list. The 127th Amendment somehow overturned the Supreme Court's May 2021 verdict and the SEBCs list position has been reinstated to pre-judgment stage. The status of 127th amendment stands passed subject to challenge in future.