The Lists, and the Commissions That Watch Them

In one line

Who counts as a Scheduled Caste, a Scheduled Tribe or a backward class is decided by a constitutional machinery of Presidential lists and parliamentary law, and the fight of the last decade has been over who controls it.

In the wording a student can write in an exam: article 341 empowers the President, by public notification, to specify the castes, races or tribes which shall be deemed to be Scheduled Castes in relation to a State or Union territory, and provides by clause (2) that Parliament may by law include in or exclude from the list any caste, but that a notification issued under clause (1) shall not be varied by any subsequent notification. Article 342 makes identical provision for the Scheduled Tribes. Article 342A, inserted by the Constitution (One Hundred and Second Amendment) Act, 2018 and amended by the Constitution (One Hundred and Fifth Amendment) Act, 2021, makes provision for the socially and educationally backward classes. Article 340 empowers the President to appoint a Commission to investigate the conditions of socially and educationally backward classes. Articles 338, 338A and 338B establish the National Commissions for the Scheduled Castes, the Scheduled Tribes and the Backward Classes respectively.

The two mechanisms are different

This is the distinction the whole chapter turns on.

For the Scheduled Castes and Scheduled Tribes, the list is constitutional machinery: a Presidential notification under article 341(1) or 342(1), variable only by a law of Parliament under clause (2). No State may alter it, and no notification may vary an earlier one. Once a caste is in, backwardness is not a further question, as [The Creamy Layer] explains.

For the socially and educationally backward classes, there was for most of the Constitution's life no list machinery at all. Article 340 permits the President to appoint a Commission to investigate their conditions and recommend, but the identification itself was done by each government, Union or State, for its own purposes. That is why Indra Sawhney had to decide how identification may be done, and why it held that no procedure is prescribed and none should be laid down by a court.

The 102nd and 105th Amendments

The Constitution (One Hundred and Second Amendment) Act, 2018 did three things: it gave the National Commission for Backward Classes constitutional status as article 338B; it inserted article 342A, providing for a Presidential list of socially and educationally backward classes on the model of articles 341 and 342, variable only by Parliament; and it inserted article 366(26C) defining the expression.

The consequence, or so it was held, was that the States lost the power to identify their own backward classes for their own purposes, because article 342A now provided a single central list.