Maratha reservation: ‘102nd amendment doesn’t allow state govt to give quota’

after the 102nd amendment, Article 342A gave the power to identify OBC/SEBC only to the President.

The 102nd amendment of the Constitution, which made formation of the National Commission for Socially and Educationally Backward Classes mandatory and gave the President and Parliament right to decide on reservation, was meant to curb political favour by the state, said advocate Satish Talekar on Thursday, while arguing how the Maratha reservation granted by the Maharashtra government was constitutionally invalid. The arguments are expected to continue on Friday.

Talekar, the lawyer for Raza Academy, members of Waqf board and Muslim clergymen, told the bench of justices Ranjit More and Bharati Dangre that prior to the 102nd amendment, the state could identify and provide reservation to OBCs, relying on provisions of Article 15(4) and 16 (4) of the Constitution. However, after the 102nd amendment, Article 342A gave the power to identify OBC/SEBC only to the President.

When asked by the bench whether he implied that the provisions were nullified, Talekar said the state could invoke the provisions only after the President specified that a particular community be included in the SEBC list.

He said an amendment moved by Kuladhar Chaliha, a member of the constituent assembly in 1949, who had proposed the state legislature should also have power to specify SCs and STs, was rejected after Dr Babasaheb Ambedkar clarified the object was to eliminate any kind of political factor. This, Talekar said, was the reason why the 102nd amendment took away the right of the state to modify or amend the list of OBC/SEBC.