Who Decides Which Classes Are Backward

And article 366(26C) defines "socially and educationally backward classes" as such backward classes as are so deemed under article 342A FOR THE PURPOSES OF THE CENTRAL GOVERNMENT OR THE STATE OR UNION TERRITORY, AS THE CASE MAY BE. The definition itself now carries the duality.

The Commissions

Article 340, original: the President may by order appoint a Commission to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour, to recommend the steps and grants needed, and to report to the President; the order shall define the Commission's procedure.

Article 338B, inserted in 2018: there shall be a Commission for the socially and educationally backward classes, to be known as the NATIONAL COMMISSION FOR BACKWARD CLASSES, consisting of a Chairperson, a Vice-Chairperson and three other Members. Its duties are to investigate and monitor safeguards, to inquire into complaints, to participate in and advise on planning and development, to report to the President on the working of the safeguards, and to discharge such other functions as the President may specify. For the investigation, monitoring and complaint functions it has the powers of a CIVIL COURT trying a suit, including summoning and enforcing attendance, requiring discovery and production of documents, receiving evidence on affidavits, requisitioning public records and issuing commissions for the examination of witnesses.

And article 338B(9) with its 2021 proviso. The Union and every State Government SHALL CONSULT THE COMMISSION on all major policy matters affecting the socially and educationally backward classes, PROVIDED that nothing in the clause shall apply for the purposes of clause (3) of article 342A. So a State making its own list under article 342A(3) is not obliged to consult the National Commission first, which is the mechanical expression of the restoration of the State's power.

Compare the other two commissions. Article 338, the National Commission for Scheduled Castes; article 338A, the National Commission for Scheduled Tribes. All three are constitutional, unlike the National Commission for Minorities, which is statutory.

The two amendments, and why they were made

Before 2018. Both the Union and the States identified socially and educationally backward classes for their own purposes, and each maintained its own list. Indra Sawhney v. Union of India had directed that a permanent Commission be created to examine requests for inclusion and complaints of over-inclusion or non-inclusion, whose advice should ordinarily bind the Government, and the National Commission for Backward Classes was created by statute in answer to that.

The One Hundred and Second Amendment 2018 gave that Commission constitutional status in article 338B and, in article 342A as first enacted, provided for a Presidential notification of socially and educationally backward classes "for the purposes of the Constitution". Read with the new definition in article 366(26C), that raised a question the Amendment did not answer in terms: whether a State retained any power to identify such classes for its own purposes, or whether every list now had to come through the President and Parliament.

The One Hundred and Fifth Amendment 2021 answered it. It confined the Presidential notification to a CENTRAL LIST for the purposes of the CENTRAL GOVERNMENT; it defined the Central List in an Explanation; it inserted article 342A(3) preserving the power of every State and Union territory to prepare and maintain its own list, with entries which may DIFFER from the Central List; it amended article 366(26C) so that the definition follows the duality; and it added the proviso to article 338B(9) so that a State exercising the article 342A(3) power need not consult the Commission.

What the sequence shows. The identification of a backward class is not merely an administrative act; it is a question of who governs. A single national list would have made the Union the sole arbiter of a benefit that States distribute in their own services and colleges, which is a federal question as much as an equality one.

The tests that survive whichever authority acts

Whoever identifies a class, the substantive law is the same.

Caste may be the starting point but not the whole test. In M.R. Balaji v. State of Mysore, AIR 1963 SC 649; 1962 Supp (1) SCR 439, treating caste as almost the sole basis of social backwardness, with only incidental reference to economic condition, was held inconsistent with article 15(4): caste may be a relevant factor but cannot be the sole or predominant one.

A caste may nonetheless be a class. In Indra Sawhney, a caste CAN BE AND OFTEN IS A SOCIAL CLASS in India, and if socially backward it is a backward class for article 16(4); the same is true of occupational groups, sects and denominations among non-Hindus.

Economic criteria alone will not do. Indra Sawhney again: a backward class cannot be identified only and exclusively by economic criteria, though identification on OCCUPATION-CUM-INCOME without reference to caste is permissible.

The creamy layer must be excluded. Indra Sawhney, and the whole line of cases in the earlier chapter.

And within a list, differentiation is now open. State of Punjab v. Davinder Singh, 1 August 2024, holding sub-classification within the Scheduled Castes permissible and overruling E.V. Chinnaiah, requires a rational principle of differentiation with a nexus to the purpose, and data on inadequacy of representation flowing from backwardness. Indra Sawhney had already permitted backward and more backward among the Other Backward Classes.

A worked example

A State passes a law in 2026 adding a community to its own list of socially and educationally backward classes, without consulting the National Commission for Backward Classes and without any Presidential notification. The addition is challenged.

Power. Article 342A(3), inserted in 2021: every State may BY LAW prepare and maintain, FOR ITS OWN PURPOSES, a list whose entries may be different from the Central List. The State has proceeded by law, which the clause requires.

Consultation. The proviso to article 338B(9), inserted at the same time, provides that the duty to consult the Commission on major policy matters does not apply for the purposes of article 342A(3). So the absence of consultation is not a defect.

Presidential notification. Not needed for a State list. Article 342A(1) as substituted in 2021 governs the CENTRAL LIST for the purposes of the CENTRAL GOVERNMENT.

Would the answer have been different in 2020? That is the point of the question. Between 15 August 2018 and 15 September 2021 article 342A spoke of a notification "for the purposes of the Constitution" and contained no clause (3), and the State's power was in doubt. The One Hundred and Fifth Amendment removed the doubt.

What can still be challenged. The substance. The community must be shown socially AND educationally backward; caste may be a factor but not the sole or predominant one on M.R. Balaji; economic criteria alone will not do on Indra Sawhney; and the creamy layer must be excluded from the benefit.

And the effect of the addition. It operates for the State's own purposes only. It does not add the community to the Central List, which only the President under article 342A(1) and Parliament under article 342A(2) can affect.

Distinctions

What it does NOT mean

It does not mean a State may alter the Central List. Article 342A(1) and (2) reserve that to the President and Parliament.

It does not mean a State list has effect outside the State. Article 342A(3) says "for its own purposes".

It does not mean the National Commission for Backward Classes has no role. Article 338B(9) requires the Union and every State to consult it on all major policy matters affecting these classes; only the article 342A(3) list-making purpose is excepted.

It does not mean a State may identify a class on any basis it likes. M.R. Balaji and Indra Sawhney govern the substance whoever exercises the power.

And it does not mean the Scheduled Castes and Scheduled Tribes have a comparable State power. Articles 341 and 342 have no equivalent of article 342A(3); only Parliament may vary those lists, and Davinder Singh holds that sub-classification does not vary them.

Quick revision

Articles 341 and 342: Presidential notification, State-specific, varied only by Parliament. Article 340: the President may appoint a Commission to investigate the conditions of socially and educationally backward classes. Article 338B, One Hundred and Second Amendment 2018 in force 15 August 2018: the National Commission for Backward Classes, a Chairperson, a Vice-Chairperson and three Members, with civil-court powers for its investigation, monitoring and complaint functions, and a duty on the Union and every State to consult it on all major policy matters, subject to the 2021 proviso excluding the article 342A(3) purpose.

Article 342A as it now stands, after the One Hundred and Fifth Amendment 2021 in force 15 September 2021: (1) the President specifies the classes IN THE CENTRAL LIST for the purposes of the CENTRAL GOVERNMENT; (2) Parliament may include or exclude from the Central List; Explanation, the Central List is the list prepared and maintained by and for the Central Government; (3) notwithstanding clauses (1) and (2), every State or Union territory may BY LAW prepare and maintain, FOR ITS OWN PURPOSES, a list whose entries MAY BE DIFFERENT from the Central List. Article 366(26C) defines the expression by reference to whichever deeming applies.

Substance, whoever identifies: M.R. Balaji, caste may be relevant but not sole or predominant; Indra Sawhney, a caste can be a social class, economic criteria alone will not do, occupation-cum-income without reference to caste is permissible, and the creamy layer must be excluded; Davinder Singh 2024, sub-classification within a list permissible on a rational principle with a nexus, overruling E.V. Chinnaiah.

Test yourself

1. Who identifies the Scheduled Castes, and who may vary the list? The President by public notification under article 341(1), after consultation with the Governor where it is a State; and Parliament alone under article 341(2).

2. What did the One Hundred and Second Amendment do? It inserted article 338B, giving the National Commission for Backward Classes constitutional status, and article 342A, providing for a Presidential notification of socially and educationally backward classes; it came into force on 15 August 2018.

3. What did the One Hundred and Fifth Amendment change? It confined the Presidential notification to a CENTRAL LIST for the purposes of the CENTRAL GOVERNMENT, defined that list in an Explanation, inserted article 342A(3) permitting every State and Union territory to prepare and maintain its own list with entries which may differ, amended article 366(26C) accordingly, and added a proviso to article 338B(9) excluding the duty of consultation for the article 342A(3) purpose. It came into force on 15 September 2021.

4. May a State's list differ from the Central List? Yes, in terms: article 342A(3) says the entries "may be different from the Central List". But the State list operates for the State's own purposes only.

5. Must a State consult the National Commission before making its own list? No. The proviso to article 338B(9) excludes the article 342A(3) purpose, though the duty to consult on all other major policy matters affecting these classes remains.

6. Which of the commissions in this area are constitutional bodies? Those under articles 338, 338A and 338B, for the Scheduled Castes, the Scheduled Tribes and the Backward Classes. The National Commission for Minorities is statutory.

7. What substantive tests apply whoever makes the list? That the class be socially AND educationally backward; that caste may be a relevant factor but not the sole or predominant one (M.R. Balaji); that economic criteria alone will not identify a backward class, though occupation-cum-income without reference to caste is permissible (Indra Sawhney); and that the creamy layer be excluded.