105th Amendment of the Indian Constitution: State Elections

This article discusses the 105th Amendment of the Indian Constitution and explains the background and the key provisions which were inserted, altered and modified under the 105th Amendment of the Indian Constitution. The need, the key events which led to such an amendment, the reason behind this amendment, Union Government’s corrective course and the impact of the amendment are also discussed in depth in this article.

Introduction

The Constitution of India serves as the fundamental law governing the country. It is essential that this Constitution can adapt to the changing needs and circumstances of society. According to Article 368 of the Indian Constitution, the Parliament is authorized to amend the Constitution. An amendment involves changing, adding, or removing provisions within the Constitution.

Amendments are made to ensure that the key principles remain intact and that the Constitution remains relevant as times change. Because the Constitution is a living document, making amendments is necessary to keep it in line with contemporary issues. Articles regarding the amendment process are explained in Part XX, specifically Article 368, which details how various parts of the Constitution can be amended.

Amending the Constitution has significant implications, such as allowing governance to adapt, enabling social reforms, accommodating new rights, and addressing emerging challenges. It is solely the Parliament that holds the power to make amendments. Different types of majorities must be achieved in Parliament for amendments. These majorities are categorized into three types:

• Simple majority of members present and voting
• Special majority where more than half of the members approve
• Special majority along with the approval of half of the states

The 102nd Constitutional Amendment, passed in 2018, allowed Parliament and the Central Government to compile a list of Other Backward Classes (OBCs) for reservation purposes. However, discrepancies arose between state and central lists, complicating the reservation system. On August 11, 2021, the 127th Constitutional Amendment Bill was enacted to give states the power to compile their lists for reservations.

This amendment directly challenged a Supreme Court ruling from 2021 in the Jaishri Laxmanrao Patil vs. The Chief Minister and Ors (2021) case, which granted the central government sole authority over identifying educationally and socially backward classes. Subsequently, the 105th Amendment reinstated the state’s authority to identify OBCs and provide reservations.

Historical Background

In India, state governments have always recognized educationally and socially disadvantaged classes. These classes receive preferential treatment in areas like education and public employment. In 1992, following recommendations from the Mandal Commission, the Indian government developed a framework to classify Socially and Economically Backward Classes (SEBCs) in a central list. This system ensured that reservations would be granted based on back class criteria.

The Supreme Court’s ruling in the case of Indra Sawhney Etc. Etc vs. Union Of India And Others (1992) reinforced that both State and Union Governments hold the authority to grant and acknowledge reservations for SEBCs. In 1993, the National Commission for Backward Classes (NCBC) was established by Parliament to promote and protect the welfare of SEBCs.

With the advent of the 102nd Constitutional Amendment in 2018, Article 338B was introduced, granting constitutional status to the NCBC. This amendment was aimed at creating a permanent body to address the inclusion and exclusion of backward classes. Additionally, state governments established their Backward Class Commissions to assess conditions and take necessary affirmative actions.

The 127th Constitutional Amendment Bill was introduced on August 11, 2021, and passed swiftly in both houses of Parliament without facing any opposition. The President of India was also given the authority to recognize communities deemed economically and socially disadvantaged, leading to restored rights for states in preparing lists for SEBCs.

Key Events Leading to the 105th Amendment of the Indian Constitution

A significant case influencing the 105th Amendment was the Maratha Quota case. Let’s delve into the facts, issues, and judgments surrounding this case to understand its relevance.

Understanding the Concept Through the Maratha Quota Case [Jaishri Laxmanrao Patil vs. The Chief Minister And Ors (2021)]

Facts of the Case

• The Maharashtra government recognized the Maratha community as SEBC in November 2018, granting them preferential treatment in public employment and education.
• The government issued an ordinance granting a 16% reservation for the Maratha community.
• The Bombay High Court issued an interim order to stay the ordinance.
• The Supreme Court subsequently upheld this stay.
• The High Court also froze the implementation of the Socially and Educationally Backward Classes Act, 2014, which granted the reservation based on the Gaikwad Commission’s recommendations, proposing a 12% reservation in education and a 13% reservation in employment.

Issues Raised

• Does the Maharashtra state possess the authority to identify SEBCs following the 102nd Amendment?
• Did the SEBC Act, 2018 violate Articles 15(4) and 16(4) of the Constitution?
• Can the 50% ceiling limit established in the Indira Sawhney case be surpassed?

Judgment of the Case

In the landmark case Jaishri Laxmanrao Patil vs. The Chief Minister And Ors (2021), the Supreme Court ruled in May 2021 (often called the Maratha Quota Case) that the determination of a 50% ceiling on reservations cannot be reconsidered and should never be exceeded. Crossing this limit was deemed unconstitutional. The petitioners could not effectively demonstrate that the Marathas represented an exceptional circumstance justifying an exception to this limit.

The Supreme Court decided that states lacked the power to designate the Maratha community as SEBCs post the 102nd Amendment. The majority held that only the central government possessed authority to recognize and designate SEBCs. As a response to strong political lobbying, the Union sought a review of the case, which was rejected, leading to the introduction of the 127th Constitutional Amendment Bill, ultimately forming the basis for the 105th Amendment.

Need for the 105th Amendment of the Indian Constitution

The 105th Amendment was implemented following the Supreme Court’s ruling in the Maharashtra reservation case, which upheld the 102nd Amendment. The Supreme Court had stated that the President would decide which communities could be included in the OBC state list, following NCBC recommendations.

The chief purpose of the 105th Amendment was to restore state governments’ powers to recognize socially and educationally disadvantaged classes. The Union Government’s intent behind the 102nd Amendment was to create a central list to be exclusively utilized by the Central Government and its institutions, leaving no role for states in categorizing backward communities.

The 105th Amendment clarified many of the ambiguities surrounding Article 342A by adding clauses and amending existing ones. The return of these state powers meant that approximately 671 OBC communities regained access to reservations in employment and educational institutions, which they could have lost if states had no authority to create OBC lists. This step promotes social balance and equity.

Provisions of the Constitution (105th Amendment) Act, 2021

Section 1

This section highlights that this Act will officially be known as the Constitution (One Hundred and Fifth Amendment) Act, 2021, coming into effect once the Central Government issues a notification in the Official Gazette.

Section 2

This section stipulates an addition to the Article 338B clause (9) in the Indian Constitution, stating that nothing in this clause will apply regarding clause (3) of Article 342A concerning socially and educationally backward classes. Clause (9) of Article 338B mandates that every State Government and Union should consult the NCBC on all policies affecting SEBCs.

Section 3

This section outlines changes in Article 342A of the Indian Constitution:

1. The phrase “the socially and educationally backward classes which shall for the purposes of this Constitution” will be changed to “the socially and educationally backward classes in the Central List which shall be for the purposes of the Central Government” in clause (1).
2. A new explanation will follow clause (2) stating that the term “Central List” refers to the SEBCs list maintained by the Central Government.
3. A new subsection (3) will be added, which states that every Union and State may create their list of SEBCs for their own purposes that can differ from the Central list.

Section 4

This section defines “socially and educationally backward classes” as those classes identified under Article 342A for the Central Government or the State, substituted in Article 366 of the Indian Constitution as clause (26C).

Article 338B of the Indian Constitution

Article 338B outlines the composition and responsibilities of the National Commission for Backward Classes (NCBC). This article details that the NCBC will consist of a chairperson, a vice-chairperson, and three other members, with their tenure and conditions set by the President. Their duties include:

• Monitoring and investigating matters related to the protection of SEBCs under laws established by the Constitution of India.
• Conducting investigations regarding violations of SEBCs’ rights.
• Submitting reports on operations to the President and as needed.
• Making recommendations for measures to be taken by both state and national governments.
• Focusing on the welfare, progress, and protection of SEBCs.

Reports submitted to the President can be presented in Parliament for further recommendations. The NCBC possesses the authority similar to that of a Civil Court in conducting investigations and inquiries. The commission can summon individuals, require document submission, receive evidence on affidavits, and issue commissions to examine various documents or witnesses.

Article 342A of the Indian Constitution

Article 342A empowers the President to determine which communities will be classified as SEBCs in a Union Territory or State. When making these decisions, the President consults the state’s Governor before making a public announcement. From the Central list of SEBCs, the Parliament can add or eliminate classes. While a central list exists for minorities, each union and state can maintain separate lists for their specific needs.

Key Points of the 105th Amendment to the Indian Constitution

• The 105th Amendment of the Constitution of India came into force on August 5, 2021.
• This amendment was part of the 127th Constitutional Amendment Bill (2021).
• Key articles amended include Article 338B, 342A, and 366 of the Indian Constitution.
• The 105th Amendment restores the authority of Union Territories and state governments to identify SEBCs.
• The NCBC, established under the 102nd Amendment Act, received constitutional status.
• The Maharashtra Government’s 16% reservation for Marathas was invalidated by the Supreme Court due to the exceeding reservation limit.
• All articles inserted by the 102nd Amendment were modified by the 105th Amendment, restoring state powers to create OBC lists. New clauses and definitions were introduced in Article 342A and a new clause (26C) in Article 366.

Corrective Course of the 105th Amendment of the Indian Constitution

The Union Government emphasized that the 102nd Amendment was primarily intended for the Central Government. However, it remained ambiguous whether state governments retained their powers to define socially and educationally backward classes, sparking confusion. A consensus arose among states for the restoration of these rights. Political parties rallied to overturn the Supreme Court decision, leading to the smooth passage of the 105th Amendment without any opposition.

This corrective action was essential for maintaining a balance between the powers of both the Central and State Governments. Many SEBCs lost their reservation rights when the Central Government exclusively recognized SEBCs. Thus, to restore equity and uphold the rights of all SEBCs, the 105th Amendment was crucial.

Impact of the 105th Amendment of the Indian Constitution

• The most significant impact of the 105th Amendment is the benefits it has brought to OBC communities.
• With this amendment, around 650 communities gained empowerment and representation.
• States can now swiftly address socio-economic concerns faced by these communities.
• Opportunities in employment and education for SEBCs contribute to their overall social status and inclusive growth.
• This amendment encourages a long-standing discussion on constitutional reservations, ultimately fostering a balance.
• The primary goal remains the establishment of equal rights for all, combating discrimination.
• Overall, the 105th Amendment aims to create a more just society.
• By allowing states to craft their OBC lists, the 105th Amendment has restored access to reservations for communities that otherwise would be marginalized.

Conclusion

In summary, the 105th Amendment of the Indian Constitution plays a vital role in the ongoing evolution of the nation’s legal framework. It successfully restored a balanced distribution of powers between both the State and Central Government regarding the identification and classifications of SEBCs. With clauses in Article 342A permitting both Central and State Governments to designate SEBCs, the 105th Amendment aligns with the core principles of inclusivity and equality set forth in the Constitution.

Moreover, the amendment addresses the Supreme Court’s previous interpretations regarding state powers by reaffirming their authority. Overall, the 105th Amendment is a positive step toward enhancing the states’ roles but includes provisions to prevent potential misuse to uphold disparities and promote fairness in the public sphere.

Frequently Asked Questions (FAQs)

What is the latest amendment to the Constitution of India?

The latest amendment to the Constitution of India is the 106th Amendment, which was implemented in September 2023. This amendment reserves one-third of all seats for women in State Legislative Assemblies, Lok Sabhas, and the National Capital Legislative Assembly.

How many amendments have been made to the Constitution of India?

As of September 2023, there have been a total of 106 amendments to the Constitution of India.

Who presented the 105th Constitutional Amendment in the Parliament of India?

The 105th Constitutional Amendment was introduced by Dr. Virendra Kumar, the Minister of Social Justice and Empowerment.

How is the Constitution of India amended?

Various processes exist for making different types of amendments to the Constitution. Generally, a bill proposing an amendment must be introduced in Parliament and must receive majority support from both houses.

What differentiates the 105th Constitutional Amendment Act from earlier laws regarding SEBCs?

The 105th Amendment is distinct because it passed through both houses of Parliament without facing any opposition. It reinstated the states’ authority to define classifications for educationally and socially disadvantaged sectors.

What does the 102nd Amendment of the Indian Constitution specify?

The 102nd Amendment empowered the President to identify OBCs across all unions and states. This amendment was made in 2018 and included Articles 338B and 342A. Additionally, it established the NCBC with constitutional status.