The Backward Classes, Article 340 and Article 342A

Why the third clause exists. The 2018 amendment was read as having taken away the States' power to identify their own backward classes, and the 2021 amendment restored it expressly. That sequence is worth knowing because it shows the category being fought over in constitutional text within three years.

Article 338B

The same 2018 amendment created a constitutional National Commission for Backward Classes under article 338B, replacing a statutory body, and gave it duties in the same form as articles 338 and 338A: to investigate and monitor safeguards, to inquire into complaints, to advise on planning, to report to the President, and to be consulted on all major policy matters. [Article 338B, and the National Commission for Backward Classes] carries it.

How the category differs from the Scheduled lists

The last row matters and is rarely noticed. There is no equivalent of the atrocities legislation for the backward classes, so the protection of this category is about access to education and employment and not about protection from violence.

Article 16(4)'s different phrase

Article 16(4) speaks of a backward class of citizens, not of a socially and educationally backward class. The two phrases are not identical, and the difference has been argued: article 15(4)'s class is defined by social and educational backwardness, while article 16(4)'s class is defined by backwardness plus inadequate representation in the services. A candidate who notices the difference is reading the text rather than reciting it.

Worked example

Her Q1, on the constitutional scheme.

Give article 340's three clauses, and say plainly that it is an inquiry power and creates no entitlement.

Give article 342A, and the sequence: list created 2018, State power restored 2021.

Give the comparison table, and make the criminal law point.

Note article 16(4)'s different phrase.

Close on article 338B, which is the commission half.

What it does NOT mean

It does not mean article 340 creates a reservation. It creates an inquiry.

It does not mean the Central List governs State reservations. Article 342A(3) preserves State lists for State purposes.

And it does not mean backward class and socially and educationally backward class are the same phrase. Article 16(4) uses the first and article 15(4) the second.

Quick revision

• Article 340: the President may appoint a Commission to investigate the conditions of socially and educationally backward classes and the difficulties under which they labour, recommend steps and grants, and define its own procedure; the Commission reports; and the report is laid before each House with a memorandum explaining the action taken.
• Article 340 is inquiry, not entitlement, and it is discretionary.
• Article 342A, from 2018: a Presidential notification specifying the classes, alterable only by Parliament by law, with a Central List. 342A(3), from 2021, expressly preserves every State's own list for its own purposes.
• The sequence matters: the 2018 amendment was read as taking away the States' power and the 2021 amendment restored it, so the category was fought over in constitutional text within three years.
• Differences from the Scheduled lists: identification by inquiry until 2018; the creamy layer applies; State lists are preserved; and there is no criminal law protection equivalent to the atrocities Act.
• Article 16(4) says backward class of citizens, not socially and educationally backward class, and adds the condition of inadequate representation in the services.

Test yourself

1. What does article 340 provide, and what does it not do? Article 340(1) empowers the President by order to appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour, and to make recommendations as to the steps that should be taken by the Union or by any State to remove those difficulties and improve their condition, and as to the grants that should be made for that purpose and the conditions subject to which such grants should be made; and the order appointing the Commission shall define the procedure to be followed by it. Article 340(2) requires the Commission to investigate the matters referred to it and to present to the President a report setting out the facts as found by it and making such recommendations as it thinks proper. Article 340(3) requires the President to cause a copy of the report, together with a memorandum explaining the action taken on it, to be laid before each House of Parliament.

What it does not do is create any right, any reservation or any entitlement. It authorises the finding of facts and the making of recommendations, and it is discretionary: the President may appoint such a Commission, and nothing in the article requires one at any interval. Its accountability route, a report to the President laid before each House with a memorandum explaining the action taken, is the same route article 338 uses for the Scheduled Castes Commission and the same one the Protection of Human Rights Act, 1993 later borrowed for the National Human Rights Commission.

2. What did articles 342A and 338B change, and when? The One Hundred and Second Amendment in 2018 made two changes. It inserted article 342A, which empowers the President, with respect to any State or Union territory and after consultation with the Governor where it is a State, to specify by public notification the socially and educationally backward classes which shall be deemed to be such in relation to that State, and provides that Parliament may by law include in or exclude from the Central List any such class, a notification not being variable by any subsequent notification. And it inserted article 338B, creating a constitutional National Commission for Backward Classes in place of a statutory body, with duties in the same form as articles 338 and 338A.

The 2018 amendment was then read as having taken away the power of the States to identify their own backward classes for their own purposes, and the One Hundred and Fifth Amendment in 2021 restored that power expressly by adding article 342A(3), which preserves the power of every State and Union territory to prepare and maintain its own list, which may differ from the Central List. That sequence is worth knowing because it shows the category being contested in the constitutional text itself within three years.

3. How does this category differ from the Scheduled Castes and Scheduled Tribes? In five respects. Its constitutional basis is articles 15(4), 16(4), 340 and now 342A, rather than articles 341 and 342. It was identified by inquiry until 2018 and by Presidential list since, whereas the Scheduled lists have been Presidential lists from the start. The creamy layer doctrine applies to it, excluding the advanced within the class on the ground that the class is a proxy for disadvantage rather than the disadvantage itself, and it does not apply in the same way to the Scheduled Castes and Scheduled Tribes because their disadvantage is not economic in origin. State lists are expressly preserved by article 342A(3), which has no counterpart for the Scheduled lists. And there is no criminal law protection equivalent to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, so the protection of this category is about access to education and employment rather than about protection from violence, which is a difference rarely noticed and worth a mark.

One textual point completes the answer. Article 16(4) speaks of any backward class of citizens, not of a socially and educationally backward class, and the two phrases are not identical: article 15(4)'s class is defined by social and educational backwardness, while article 16(4)'s is defined by backwardness together with inadequate representation in the services under the State. A candidate who notices the difference is reading the Constitution rather than reciting it.