A Critique of the Supreme Court’s Maratha Reservation Judgment – II: Federalism

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

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In the previous post, we discussed the Supreme Court’s holding on the 50% cap in the Maratha Reservation judgment. In this post, we shall discuss the second set of issues that came before the Court, i.e., the interpretation of the 102nd Amendment to the Constitution, and whether the power to identify socially and educationally backward classes [“SEBCs”] was vested only with the centre, or with both the centre and the states. By a 3:2 majority, the Supreme Court held in favour of the former view, and thus denuded the states of their power to identify SEBCs for the purposes of reservation, going forward.

The 102nd Constitutional Amendment made three significant changes to the Constitution. First, through a new Article 338B, it created a National Commission for Backward Classes with constitutional status. Article 338B largely followed the scheme of Article 338 (National Commission for Scheduled Castes) and 338A (National Commission for Scheduled Tribes). Secondly, through a new Article 342A, it specified a process for the identification of SEBCs that closely followed the process of identification set out in Articles 341 (Scheduled Castes) and 342 (Scheduled Tribes) – albeit, with one significant difference, to which we will come to in a moment. Thirdly, it added a new sub-clause (26C) to the Constitution’s definitions clause (Article 366), which stated that the term “SEBC” means “such backward classes as are so deemed under Article 342A for the purposes of this Constitution.”

There were two competing interpretations of these changes. According to the first interpretation, the new constitutional provisions did not substantively alter the status quo, according to which the centre and the states exercised joint and separate powers to identify SEBCs (a central list and several state lists), for their own purposes (educational institutions and public employment). According to the second interpretation, however, these provisions created a new structure that was identical to the situation of Scheduled Castes and Scheduled Tribes (SCs and STs): the power to identify beneficiaries now lay solely with the centre, and no longer with the states.

At the outset, there were two textual reasons in support of the first proposition. First, unlike in the case of SCs and STs, the existing arrangement – i.e., state and centre exercising powers separately – had been in existence since the beginning of the Constitution. It was therefore implicit that if a constitutional amendment intended to change that to a drastic degree, it would do so in express terms, and not by implication. Notably, at no point did Article 338B or 342A state that the process it was codifying was the sole process of identifying SEBCs. Secondly, there was one notable difference between Articles 341 and 342 on the one hand, and Article 342A on the other. All three articles, in their first sub-clause, authorised the President to notify the list of beneficiaries (SC, ST, or SEBC). In their second sub-clause, Articles 341 and 342 clarified that a Presidential notification could only be amended by Parliament. Article 342A(2), however, used the following language: “Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class…“

The reference to the Central List is new, and strongly indicates that the new constitutional arrangement was limited in its operation to the existing process only at the central level, i.e., with respect to the Central List of SEBCs (and not the state lists). If the intention of the new scheme was to do away with state lists altogether, then Article 342A(2) would have followed the wording of 341(2) and 342(2), which only used the terms “list of Scheduled Castes” and “list of Scheduled Tribes.” The phrase “Central List” made sense only in a context in which there existed state lists to start with.

As we have seen, however, by a 3:2 majority, the Supreme Court disagreed with this reading. Let us first examine the judgment of Justice Bhat, with which Justices Gupta and Rao agreed. As Bhat J. insisted that the wording of the amendments was unambiguous, and a literal reading pointed to only one possible interpretation, I will – for the moment – set aside the extensive references to Parliamentary Committee reports and to policy reasons underlying the constitutional changes, and focus on textual and structural arguments. A close examination of Justice Bhat’s judgment reveals the following reasons for disagreement: first, Article 366(26C) defined SEBCs by referring to Article 342A, “for the purposes of this Constitution.” The phrase “for the purposes of this Constitution” was to be interpreted broadly, and – following precedent on the interpretation of Articles 341 and 342 – read to include the entirety of the Indian Constitution, which therefore also included Articles 15(4) and 16(4) (the reservation provisions). Consequently, Article 342A now exclusively governed the field with respect to the identification of SEBCs. Secondly, previous amendments to the definitions clause had been given effect to “in their broadest manner”, including in situations where this would cut down the powers of the several states. Thirdly, given that, under the National Commission for Backward Classes [“NCBC”] Act, the central government already had the power for publishing lists of SEBCs for union employment and central PSU posts, there was no reason to amend the Constitution and provide for a power that already existed; fourthly, the word “central” was used at various places in the Constitution, and therefore only signified a list prepared by the President at the behest of the central government, and not a list for employment under the central government; fifthly, Parliament intended, through the 102nd Amendment to replicated the regime for identification of SCs and STs, for SEBCs as well, and that is why Article 338B was a “mirror image” of Articles 338 and 338A. The “total alignment” between the three processes was then achieved by Article 342A.

With respect, each of these arguments is flawed.

The problems begin with the first argument (“for the purposes of this Constitution”), which was – indeed – the lynchpin of Bhat J.’s interpretation (and therefore reiterated by him throughout the judgment). The problem is a simple one: in essence, Bhat J.’s reading puts the cart before the horse. Article 366(26(C)) states that SEBCs, for the purposes of this Constitution, mean the backward classes deemed so under Article 342A. But it is the interpretation of Article 342A itself that is under dispute, because of the use of the term “Central List”. If, for the purposes of argument, we assume that the correct interpretation of “Central List” is, indeed, the list that refers to union employment and central PSUs, and not the list prepared by the centre, then Article 342A itself contemplates separate powers for the centre and the state, in identifying SEBCs. Justice Bhat’s argument might have been correct if Article 366(26(C)) had referred back only to Article 342A(1) – which is about the Presidential notification of SEBCs. But Article 342A contains two sub-clauses – (1) and (2), (2) refers to the “Central List”, and 366(26(C)) refers to both 342A(1) and (2). It therefore follows that the implication of the term “for the purposes of this Constitution” under Article 366(26(C)) will change depending upon how you first interpret Article 342A, on its own terms. Instead, Bhat J. used Article 366(2C)) to settle the issue of the interpretation of Article 342A. This, then, would have a knock-on effect on a lot of other arguments deployed by him, such as, for example, giving an exhaustive meaning to the word “means” under Article 366(26(C)) as well. And if Bhat J.’s first argument falls, then the second argument – giving amendments to the definition clause their “full impact” falls as well, because we don’t know what the definitions clause actually refers to until we have first interpreted Article 342A, autonomously.

The third argument works no better. It is equally plausible to argue that Parliament wanted to provide constitutional status to what had hitherto been only a statutory procedure under the NCBC Act. Constitutional bodies exercise greater prestige than statutory bodies (recall the whole debate about the necessity of having a putative NJAC under the Constitution, and not left to statute). Without further evidence of Parliamentary intent, neither interpretation can be favoured over the other.

Justice Bhat’s fourth and fifth arguments can be taken together, as they both pertain to the phrase “central list.” On his fourth argument, the fact that the Constitution uses the word “central” at various points does not help the case: the issue is not with the word “central”, but with the term “central list”, and with the fact that Articles 341(2) and 342(2) do not use that phrase, and instead, use the phrase “lists of…” If, indeed, the term “central list” meant a list prepared by the central government (through the President), then the exact same phrase should have been used in Articles 341(2) and 342(2) as well – because the list of SCs and STs is also prepared by the central government. This also addresses Justice Bhat’s fifth argument, about the “mirror image” and “total alignment”: this argument is simply belied by the textual differences between 341(2), 342(2), and 342A(2): the moment Article 342A(2) uses the phrase “central list” – a conscious departure from “lists of…”, there is evidently no “total alignment.”

In my view, these arguments demonstrate that the textual evidence is clear for the other interpretation of these provisions: that they were not meant to disturb the status quo and denude the states of their powers to identify SEBCs. At the very least, however, these arguments reveal that the provisions are ambiguous, and therefore require extrinsic aids to interpretation. In this context, I do not have much to add to Bhushan J.’s discussion of the Parliamentary debates and reports that led up to the 102nd Amendment, as I find it both persuasive and compelling. In brief, objections were raised as to how the Amendment, in its presently worded form, might take away the states’ powers, and the minister piloting the amendment made it clear that the purpose was not to take away states’ powers, but to codify central powers. Bhat J. points to the fact that proposed amendments aiming to set this out in express terms were rejected. The rejection of an amendment, however, can be motivated by two reasons: on the one hand, it could be because Parliament did not agree with the substance of the amendment. On the other hand, it could be because Parliament was of the view that the amendments did not alter or add to anything that was already there – and obviously so – in the original text. Repeated assurances by government ministers that the Bill was not altering the status quo suggests the latter reading. Bhat J. also draws a distinction between assurances that states’ powers would not be diluted, and states’ interests would be taken care of. A look at the legislative history makes it clear, however, that both sets of assurances (not just one) were made.

One could argue, of course, that the parliamentary history – like the text – is inconclusive. A final point then remains: that of federalism. Let us say, for the purposes of argument, that the text of the provisions admitted of no definite interpretation, and neither did parliamentary history. In such a context, faced with two equally plausible interpretations of the text, it was at least abundantly clear that one interpretation would advance federalism (a part of the basic structure of the Constitution), while the other would undermine it. As in the famous UK Supreme Court judgment in Miller II, constitutional principles can – and often do – serve as implied limitations upon constitutional power, where more than one reading of a text is possible. It is my submission that as long as Article 342A could bear a plausible interpretation that would support federalism, it was the Court’s duty to give effect to that interpretation.

Unfortunately, however, not only did Bhat J.’s judgment not do this, but also found this to be a policy reason in support of his anti-federal reading. Bhat J. made references to how a single, central list would help to prevent politicisation of the process, and ensure objectivity in identifying beneficiaries. Not only are these claims evidence-free, however, they are also quite bizarre: why would one think that taking power away from state governments and giving it to the central government would remove politicisation, instead of just shifting its locus from point A to point B (there is, furthermore, a latent prejudice here against the idea of politics, and in favour of an apolitical, technocratic process, but let us leave that discussion for another day)? Justice Bhat’s arguments reveal an unfortunate bias that has long been part of Indian judicial discourse: the assumption that state governments are prone to corruption, rent-seeking, and institutional capture, while the central government stands aloof and objective. There is, however, no historical basis to this claim, and indeed, in the case of SEBCs, there are powerful arguments to be made that local governments are best positioned for the purposes of identification.

Whatever the final reasons, however, the Marathe Reservation judgment only adds to what is now a fairly long anti-federal judicial tradition of interpreting constitutional ambiguities so as to transfer power from the states to the centre. In the long run, this belies our courts’ rhetorical commitment to the principle of federalism and is, in my view, an unfortunate part of our constitutional jurisprudence.