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GS Paper: GS2

  • Maratha quota judgment could lead to a federal crisis on reservation

    The article highlights the issues with the Supreme Court’s interpretation of the 102nd amendment depriving the States of power to identify the SEBCs.

    How 102nd Constitution Amendment was interpreted by the SC?

    • Supreme Court held that the 102nd Constitution Amendment has taken away the power of the states to identify and prepare a list of Socially and Economically Backward Classes (SEBCs).
    • The Supreme Court has interpreted the 102nd constitutional amendment to the effect that only the President can publish a list of backward classes in relation to each state and that only Parliament can make inclusions and exclusions in that list.
    • The Supreme Court has also directed the central government to notify the list of SEBCs for each state and Union Territory.
    • Until such lists are prepared, the court directed that the present state list would continue to be in operation.

    Time-honoured authority of the States

    • The states have been exercising the power to identify the list of SEBCs from the beginning of the 20th century.
    • In states like the Madras Presidency, Mysore, Bombay, Travancore-Cochin, reservation and other benefits to OBCs were in practice since the 1920s.
    • The Constitution (First Amendment) Act, 1951 and the insertion of Article 15(4), empowered the states to make “special provision for the advancement of socially and educationally backward classes of citizens”.
    • In states like Bihar, 26 per cent reservation to OBCs in jobs and educational institutions were provided in 1978 on the recommendations of the Mungeri Lal Commission.
    • Similarly, in more than a dozen states, reservation in jobs and educational institutions were provided on recommendations of the respective state commissions.

      Central list of SEBC after Indra Sawhney judgment

    • Till 1992, there was no central list of SEBCs and no reservation in jobs and educational institutions in the central government.
    • In the Indra Sawhney judgment in 1992, the Supreme Court upheld 27 per cent reservation in central government jobs for SEBCs.
    • After Indra Sawhney, the Union government was authorised to prepare a central list for reservation of SEBCs in central government jobs and take other affirmative actions.
    • Acting on the directions of the Supreme Court in Indra Sawhney, the central and several state governments enacted laws for setting up commissions to ascertain and identify the backward class of citizens.
    • Therefore, after 1992, there was a “central list” for central government services and a “state list” that was prepared by state governments for state-specific jobs.

    Intention of the Union government

    • The intention was not to change the status quo and to take away the power of the state governments to prepare and notify a separate state list of SEBCs.
    • Even during the discussion in the select committee of Parliament on the 102nd Constitution Amendment, the Ministry of Social Justice and Empowerment clarified that the proposed insertion of Article 342A (1) and (2) did not interfere with the power of state governments to identify SEBCs.
    • In the affidavit filed by the central government before the Supreme Court, it was submitted that the power of Parliament to identify SEBCs lay with reference to the central list and states would have a separate list of SEBCs for reservation.

    Way forward

    • If the review petition fails to convince the Supreme Court, the central government would have to expeditiously bring a constitutional amendment to resolve this crisis.

    Consider the question “Examine the issues with the Supreme Courts interpretation of the 102nd constitutional amendment regarding the States’ right to identify the socially and economically backward class.” 

    Conclusion

    The majority judgement by 3:2 has failed to appreciate that Article 15 empowers the states to identify socially and economically backward classes of citizens and that this power has not been changed by the 102nd Constitution Amendment.

  • Pardoning powers of the President

    Tamil Nadu CM has written to the President requesting him to accept the State Government’s to remit the life sentences of all the seven convicts in the Ex-PM’s assassination case.

    Story so far

    • Tamil Nadu government had recommended to the state Governor for the remission of the rest of the sentence for all convicts and their early release.
    • The Governor has then decided that the President was the competent authority to decide on the plea of remission of sentence.

    Answer this PYQ in the comment box:

    Q.Which of the following are the discretionary powers given to the Governor of a State?

    1. Sending a report to the President of India for imposing the President’s rule
    2. Appointing the Ministers
    3. Reserving certain bills passed by the State Legislature for consideration of the President of India
    4. Making the rules to conduct the business of the State Government

    Select the correct answer using the code given below:

    (a) 1 and 2 only

    (b) 1 and 3 only

    (c) 2, 3 and 4 only

    (d) 1, 2, 3 and 4

    Pardon

    • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

    Why need Pardon?

    • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
    • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
    • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

    Pardoning powers in India

    • Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
    • A similar and parallel power vests in the governors of each state under Article 161.

    [1] President

    1. Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense.
    2. The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning that are mandated by law.
    • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
    • Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
    • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    • Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

    Cases as specified by art. 72

    • in all cases where the punishment or sentence is by a court martial;
    • in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
    • in all cases where the sentence is a sentence of death.

    [2] Governor

    • Similarly, as per article 161: Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law.
    • It must be relating to a matter to which the executive power of the state extends.
    • Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.

    Nature of the Pardoning Power

    • The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
    • The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
    • This has not been discussed by the constitution but is the practical truth.
    • Further, the constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
    • But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
    • The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

    Some traditions

    • It is important to note that India has a unitary legal system and there is no separate body of state law.
    • All crimes are crimes against the Union of India.
    • Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
    • While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.

  • E-way bill integrated with FASTag, RFID

    GST officers have been armed with real-time data of commercial vehicle movement on highways with the integration of the e-way bill (EWB) system with FasTag and RFID.

    Why such a move?

    • The integration of e-way bill, RFID, and FASTag will enable tax officers to undertake live vigilance in respect of EWB compliances by businesses and will help curb tax evasion.
    • It will aid in preventing revenue leakage by real-time identification of cases of recycling and/or non-generation of EWBs.

    What are E-way bills (EWB)?

    • Under the GST regime, transporters should carry the eWay Bill when moving goods from one place to another when certain conditions are satisfied.
    • EWBs are mandatory for inter-state transportation of goods valued over Rs 50,000 from April 2018, with the exemption to precious items such as gold
    • In this system, businesses and transporters have to produce before a GST inspector the e-way bill, if asked.
    • On average, 25 lakh goods vehicle movements from more than 800 tolls are reported on a daily basis to the e-way bill system.

    Benefits of the move

    • Tax officers can now access reports on vehicles that have passed the selected tolls without EWBs in the past few minutes.
    • Also, vehicles carrying critical commodities specific to the state and having passed the selected toll can be viewed.
    • Any suspicious vehicles and vehicles of EWBs generated by suspicious taxpayer GSTINs, that have passed the selected toll on a near real-time basis, can also be viewed in this report.
    • The officers can use these reports while conducting vigilance and make the vigilance activity more effective.
    • Also, the officers of the audit and enforcement wing can use these reports to identify fraudulent transactions like bill trading, recycling of EWBs.

  • Places in news: Paracel Islands

    A United States warship sailed through the Paracel Islands in the disputed South China Sea.

    Paracel Islands

    • The Paracel Islands, also known as the Xisha Islands are a disputed archipelago in the South China Sea.
    • The archipelago includes about 130 small coral islands and reefs, most grouped into the northeast Amphitrite Group or the western Crescent Group.
    • They are distributed over a maritime area of around 15,000 square kilometers with a land area of approximately 7.75 square kilometers.
    • The archipelago includes Dragon Hole, the deepest underwater sinkhole in the world.
    • It is surrounded by productive fishing grounds and a seabed with potential, but as yet unexplored, oil and gas reserves.

  • The outdated nature of bureaucracy

    The second wave of Covid has exposed the inherent weakness of the bureaucracy in India. The article highlights the necessity for reforms in the way bureaucracy functions in India.

    Features of traditional bureaucracy

    • Preference to generalist: Weberian bureaucracy still prefers a generalist over a specialist.
    • Preference to leadership of position: The leadership of position is preferred over leadership of function in the traditional bureaucracy.
    • The leadership of function is when a person has expert knowledge of a particular responsibility in a particular situation.
    • The role of the leader is to explain the situation instead of issuing orders.
    •  Every official involved in a particular role responds to the situation rather than relying on some dictation from someone occupying a particular position.
    • Lack of innovation: The rigid adherence to rules has resulted in the rejection of innovation.

    Covid exposed limits of traditional bureaucracy

    • A generalist officer IAS and State civil service officials are deemed an expert and as a result, superior in traditional bureaucracy.
    • Specialists in every government department have to remain subordinate to the generalist officers.
    • The COVID-19 pandemic has exposed the weakness of this system.
    • Healthcare professionals who are specialists have been made to work under generalist officers and the policy options have been left to the generalists when they should be in the hands of the specialists.
    • The justification is that the generalist provides a broader perspective compared to the specialist.

    Is privatisation and private sector managerial techniques an answer?

    • The reform often suggested in India is new public management.
    • This as a reform movement promotes privatisation and managerial techniques of the private sector as an effective tool to seek improvements in public service delivery and governance.
    • But this isn’t a viable solution in India where there is social inequality and regional variations in development.
    • It renders the state a bystander among the multiple market players with a lack of accountability.
    • Further, COVID-19 has shown that the private sector has also failed in public service delivery.

    Way forward: Collaborative governance

    • The most appropriate administrative reform is the model of new public governance.
    • Work together: In collaborative governance, the public sector, private players and civil society, especially public service organisations (NGOs), work together for effective public service delivery.
    • As part of new public governance, a network of social actors and private players would take responsibility in various aspects of governance with public bureaucracy steering the ship rather than rowing it.
    • As part of new public governance, the role of civil society has to be institutionalised.
    • It needs a change in the behaviour of bureaucracy.
    • Openness to reforms: It needs flexibility in the hierarchy, a relook at the generalist versus specialist debate, and an openness to reforms such as lateral entry and collaboration with a network of social actors.
    • All major revolutions with huge implications on public service delivery have come through the collaboration of public bureaucracy with so-called outsiders.
    • These include the Green Revolution (M.S. Swaminathan), the White Revolution (Verghese Kurien), Aadhaar-enabled services (Nandan Nilekani) and the IT revolution (Sam Pitroda).

    Consider the question “What are the weaknesses of bureaucracy in India? Suggest the measures to improve the quality of public service delivery in India.”

    Conclusion

    New public governance is the future of governance, especially public service delivery.

    Back2Basics: The Weberian Model of bureaucracy

    • The classic model of bureaucracy is typically called the ideal Weberian model, and it was developed by Max Weber, an early German sociologist.
    • Weber argued that the increasing complexity of life would simultaneously increase the demands of citizens for government services.
    • Therefore, the ideal type of bureaucracy, the Weberian model, was one in which agencies are apolitical, hierarchically organized, and governed by formal procedures.
    • Furthermore, specialized bureaucrats would be better able to solve problems through logical reasoning.
    • Such efforts would eliminate entrenched patronage, stop problematic decision-making by those in charge,, impose order and efficiency, create a clear understanding of the service provided, reduce arbitrariness, ensure accountability, and limit discretion.

  • The fault line of poor health infrastructure

    The poor public health infrastructure in India hits the poor hard. The article examines the factors responsible for poor public health infrastructure and suggests the measures to deal with it.

    Poor state of health infrastructure

    • World Bank data reveal the poor state of India’s health infrastructure.
    • It reveals that India had 85.7 physicians per 1,00,000 people in 2017.
    • In contrast, it is 98 in Pakistan, 58 in Bangladesh, 100 in Sri Lanka and 241 in Japan.
    • India had 53 beds per 1,00,000 people.
    • It is 63 in Pakistan, 79.5 in Bangladesh, 415 in Sri Lanka and 1,298 in Japan.
    • India had172.7 nurses and midwives per 1,00,000 people in contrast to 220 in Sri Lanka, 40 in Bangladesh, 70 in Pakistan, and 1,220 in Japan.

    What are the factors responsible for poor health infrastructure?

    • Stagnant expenditure: Analysis by the Centre for Economic Data and Analysis (CEDA), Ashoka University, shows that health expenditure has been stagnant for years.
    • Lack of expertise with states: Despite health being a state subject, the main bodies with technical expertise are under central control.
    • The States lack corresponding expert bodies such as the National Centre for Disease Control or the Indian Council of Medical Research.
    • Inter-State variation: States also differ a great deal in terms of the fiscal space to deal with the novel coronavirus pandemic because of the wide variation in per capita health expenditure.
    • Kerala and Delhi have been close to top in years from 2011 to 2019-20.
    • Bihar, Jharkhand and Uttar Pradesh, States that have been consistently towards the bottom of the ranking in the same years.

    Out-of-pocket expenditure and its impact on the poor

    • Due to low levels of public health provision, the World Health Organization estimates that 62% of the total health expenditure in India is OOP, among the highest in the world.
    • Some of the poorest States, Uttar Pradesh, Bihar, Madhya Pradesh, Jharkhand and Odisha, have a high ratio of OOP expenditures in total health expenditure.
    • Impact on the poor: High ratio of OOP means that the poor in the poorest States, the most vulnerable sections, are the worst victims of a health emergency.

    Way forward

    1) Coordinated national plan

    • The inter-State variation in health expenditure highlights the need for a coordinated national plan at the central level to fight the pandemic.
    • The Centre already tightly controls major decisions, including additional resources raised specifically for pandemic relief, e.g. the PM CARES Fund.
    • The need for a coordinated strategy on essential supplies of oxygen and vaccines is acute.
    • The Centre can bargain for a good price from vaccine manufacturers in its capacity as a single large buyer like the European Union did for its member states.
    • Centre will also benefit from the economies of scale in transportation of vaccines into the country.
    • Once the vaccines arrive in India, these could be distributed across States equitably in a needs-based and transparent manner.
    • Another benefit of central coordination is that distribution of constrained resources like medical supplies, financial resources can internalise the existing disparities in health infrastructure across States.

    2) Form Pandemic Preparedness Unit

    • There is a need for the creation of a “Pandemic Preparedness Unit” (PPU) by the central government.
    • PPU would streamline disease surveillance and reporting systems; coordinate public health management and policy responses across all levels of government.
    • It will also formulate policies to mitigate economic and social costs, and communicate effectively about the health crisis.

    Consider the question “India has among the highest out-of-pocket expenditure in the world, which is the result of poor public health infrastructure. Examine the factors responsible for poor public health infrastructure and suggest the ways to deal with it.”

    Conclusion

    As and when we emerge on the other side of the pandemic, bolstering public health-care systems has to be the topmost priority for all governments: the Centre as well as States.

  • Centre’s decision to provide security to MLAs raises questions

    The article deals with the issue of the Home Ministry’s decision to provide security to BJP MLAs in West Bengal.

    Context

    Recently, the Union Ministry of Home Affairs (MHA) decided to provide security cover to 77 MLAs of the Bharatiya Janata Party (BJP) who were elected earlier this month after the West Bengal Assembly poll.

    Issues with the decision

    1) Threat perception discussed for a group and not one by one person

    • Decisions to provide security to persons under threat is taken by a committee in the MHA.
    • The committee comprises officials from the MHA, the Intelligence Bureau, Delhi Police and senior officials of the Central Armed Police Forces.
    • In the meetings of the committee, the threat perception of each of the person to be secured is discussed one by one and not collectively for any group as such.
    • However, in the decision to deploy CAPF personnel for the 77 MLAs, threat perception for each of the persons was not discussed.

    2) Law and order is a state subject

    • Law and order being a State subject, West Bengal is duty-bound to protect every citizen of the State, more so the MLAs.
    • By deploying central forces, the Centre has sent a clear signal that it does not rely upon the State government to provide fool-proof security to the BJP MLAs.
    • This is not a good sign for Centre-State relations.
    • The Central government’s distrust of officers who are considered close to a State’s ruling dispensation does not bode well for police officers across the country.

    3) Burdening the security forces

    • The number of protected persons has increased in recent years.
    • In 2019, as many as 66,043 police and CAPF personnel were deployed to protect 19,467 persons against the sanctioned strength of 43,556 personnel, as per the Data on Police Organisations.
    • Constant deployment of CAPF personnel on protection duties impacts their training schedule.

    Curbing the tendency to have security as status symbol

    • To curb the tendency of demanding security personnel around themselves, leaders and prominent persons should be asked to bear the expenditure.
    • Similarly, Members of Parliament and leaders with criminal records should be charged a fee for the security personnel deployed to protect them.

    Conclusion

    The Centre’s decision to provide security to the MLAs would set a wrong precedent and does not bode well for federalism.

  • Russia’s Nord Stream 2 Pipeline

    The US government has decided to waive sanctions on the company behind Russia’s Nord Stream 2 pipeline to Europe.

    Nord Stream 2 Pipeline

    • It is a system of offshore natural gas pipelines running under the Baltic Sea from Russia to Germany.
    • It includes two active pipelines running from Vyborg to Lubmin near Greifswald forming the original Nord Stream, and two further pipelines under construction running from Ust-Luga to Lubmin termed Nord Stream 2.
    • In Lubmin the lines connect to the OPAL line to Olbernhau on the Czech border and to the NEL line to Rehden near Bremen.
    • The first line Nord Stream-1 was laid and inaugurated in 2011 and the second line in 2012.
    • At 1,222 km in length, Nord Stream is the longest sub-sea pipeline in the world, surpassing the Langeled pipeline.

    US sanctions

    • Nord Stream projects have been opposed by the United States as well as by several Central and Eastern European countries because of concerns that the pipelines would increase Russia’s influence in the region.
    • The US resistance to Nord Stream 2 is also influenced by the country’s increased production of natural gas, which gives the US economic incentive to resist the Russian supply of gas to the EU, in favour of US shale gas.

  • Issues in Social Security Code 2020

    Provisions in Social Security Code 2020

    • India’s Parliament in September 2020 passed a Social Security Code (SS Code 2020).
    • The SS Code 2020 merges existing social security laws and attempts to include informal workers within the ambit of social security administration.
    • The SS Code 2020 amalgamates and rationalises the provisions of eight existing central labour laws.
    • Of these acts, employees provident fund, employees state insurance (ESI), maternity benefit, gratuity are entirely for organised sector workers. 
    • Employee threshold removed: For employees’ state insurance, the existing employee threshold has been withdrawn.
    • Now the central government can extend ESI benefits to any organisation irrespective of the number of workers employed.

    Key benefits not available to informal workers in Social Security Code 2020

    • Maternity benefit: Under the SS Code, the provision of maternity benefit has not been made universal.
    • Maternity benefit is presently applicable for establishments employing 10 workers or more.
    • The definition of ‘Establishment’ in the proposed code did not include the unorganised sector.
    • Hence, women engaged in the unorganised sector would remain outside the purview of maternity benefit.
    • Employees Provident Fund: The SS Code maintains that the Employees’ Provident Fund Scheme will remain applicable, as before, to every establishment in which 20 or more employees are employed.
    • Thus, for informal sector workers, access to employees’ provident fund remains unfulfilled too in the new code.
    • Payment of gratuity: Gratuity shall be payable to eligible employees by every shop or establishment in which 10 or more employees are employed, or were employed, on any day of the preceding 12 months.
    • But although payment of gratuity was expanded in the new Code, it still remains inaccessible for a vast majority of informal workers.

    Challenges faced by informal workers in availing social security

    • Registration barrier: To avail social security, an informal worker must register herself on the specified online portal to be developed by the central government.
    • Absence of definition: The absence of definite and unambiguous provisions in the present code would further complicate achievement of universal registration.
    • Lack of awareness: Experience shows that there is an awful lack of awareness among informal workers regarding social security schemes.
    • Lack of digital literacy: Online registration places a further challenge as most informal workers lack digital literacy and connectivity.
    • Lack of documents: Informal workers also find it difficult to furnish all documentary papers required as part of the registration process.
    • Furnishing proof of livelihood and income details in the absence of tangible employer-employee relations is very difficult.
    • Such requirements deter informal workers from completing the registration and they continue to remain outside the social security ambit.

    Way forward

    The provision of social security could be used to formalise the workforce to a certain extent. Employers could have been made to own up to the responsibility of providing social security to their workers.

    1) Inter-State cooperation

    • As unorganised workers are spread across the length and breadth of India, inter-State arrangement and cooperation becomes imperative.
    • The central government should conceptualise a basic structure, which if successful, should be adopted by States after necessary customisation.

    2) Universal coverage

    • The unorganised workforce is all encompassing, minus the minuscule regular workers of organised sectors.
    • This identity should be primal and all unorganised workers should have basic social security coverage, irrespective of labour market classifications.
    • The code fails to undertake such inclusion in a meaningful way.

    Conclusion

    The Social Security Code fails to provide adequate protection to informal workers, who constitute 91% of the workforce. The pandemic and misery brought by it on these informal workers highligths the need for universal social security.

  • Divesting States of the power to determine backwardness hits federalism

    The article highlights the issues with the Supreme Court judgement in the Maratha reservation case.

    Three findings from Maratha reservation judgement

    • Recently, the Supreme Court of India declared as unconstitutional a Maharashtra law which provided for reservation to the Maratha community.
    • Three primary findings emanated from the judgement-
    • 1) Maratha not backward class: The Court held that the Maratha community did not constitute a socially and educationally backward class.
    • 2) Breach of 50% limit: The bench said that the law was in breach of a rule previously set by the Court disallowing reservations made in excess of 50% of the total available positions.
    • 3) Power of the States: The Court held that State governments had no independent power to declare a group as a backward class.

    Issues with the judgement

    The latter two findings run against the values of equality and federalism, which the Court has long regarded as integral to India’s democracy.

    1)  50% limit does not stem from the Constitution

    • Articles 16(4) and 15(4) which confer power on the government to make reservations do not contains 50% limitation.
    • Reservation as an exception: Originally, however, these clauses were seen by the Supreme Court as exceptions to a broad rule of formal equality envisioned by the Constitution.
    • To that end, the Court held that to allow reservation in excess of 50% would lead to an exception overriding a rule. 
    • Reservation as basic guarantee: Countering the reservations as an exception position, a seven-judge Bench, in State of Kerala vs N.M. Thomas (1975), held that a programme of reservation was inherent in the Constitution’s basic guarantee of equal treatment.
    • This judgment held that affirmative action by the state was compelled by an objective of attaining substantive equality.
    • With this judgement the rule requiring that reservations stay under 50% ought to have been deemed incongruous.
    • But when the Court sat as a nine-judge Bench in Indra Sawhney vs Union of India (1992) it sustained the 50% limit.
    • The majority on the Bench ruled, on the one hand, that N.M. Thomas was correct in seeing reservations as embedded in a constitutional vision of substantive equality.
    • On the other hand, the bench accepted that reservation made in excess of 50%, barring exceptional circumstances, was harmful to that very vision. 

    2) Interpretation of 102nd Amendment curtails the powers of the State governments to declare groups as backward

    • After Indra Sawhney judgement, the determination of backward classes was made by the National Commission for the Backward Classes, at the level of the Centre, and by regional commissions at the level of the State governments.
    • This division in power, gave States autonomy to classify groups as backward.
    • In contrast, the power to prepare lists of Scheduled Castes and Scheduled Tribes, vested solely with the Union government.
    • The 102nd Amendment (2018), introduced Article 342A.
    • Article 342A stipulated that the President of India may, after consultation with the State government, notify groups of persons within such a State who are deemed to be socially and educationally backward.
    • Any such “Central List”, the clause clarified, could only be altered by Parliament.
    • Article 366(26C) was also added, and “socially and educationally backward classes” was defined as “such backward classes as are so deemed under Article 342A for the purposes of this Constitution”.
    • In interpreting these changes, a majority in the Maratha reservation judgement concluded that the power for determination of other backward classes rests solely with the Centre.

    How this interpretation goes against the federalism

    • This interpretation of 102nd Amendment altogether dispossess States from exercising a time-honoured authority.
    • But yet the amendment, in the Court’s belief, did not violate the Constitution’s basic structure.
    • This was because, according to the majority, the alterations neither took away “the very essence of federalism” nor denuded the States of their effective power to legislate.
    • But divesting states of power this critical, to classify groups as backward, entitling many communities to protection under Articles 15(4) and 16(4) is offensive to the “essence” of federalism.
    • The changes, as interpreted by the Court, directly impede the ability of States to secure just social order.

    Consider the question “What are the implications for the States of the interpretation of the 102nd Amendment by the Supreme Court in the Maratha reservation case?” 

    Conclusion

    It is imperative that Parliament amend the Constitution and grants to States an express power to determine backwardness. Any other result will offend the delicate balance at the heart of Indian federalism.