One Hundred and Fifth Amendment of the Constitution of India

The Constitution (One Hundred and Fifth Amendment) Act, 2021 is a significant amendment to the Constitution of India, enacted to restore the power of State governments and Union Territories to identify and recognise socially and educationally backward classes (SEBCs) within their jurisdictions. These classes, which include the groups commonly referred to as Other Backward Classes (OBCs), are entitled to special provisions in education, employment, and other public welfare measures under India’s framework of affirmative action.
The amendment was passed with unanimous support in both Houses of Parliament in August 2021 and received Presidential assent on 18 August 2021. It came into effect retrospectively from 15 August 2021. The legislation reaffirmed the federal character of India’s polity by reinstating States’ authority in matters of social justice and welfare classification.

Historical Background and Constitutional Context

The recognition of socially and educationally backward communities has been an essential feature of India’s social policy since the colonial era. Early precedents include Shahuji Maharaj’s reservation policy for Dalits and backward classes in 1902 and similar measures by the Madras Presidency in 1947. After independence, the principle of positive discrimination was embedded in the Constitution through Articles 15(4) and 16(4), empowering governments to make special provisions for socially and educationally backward citizens.
The landmark Indra Sawhney v. Union of India (1992) judgment upheld the constitutional validity of reservations for OBCs and established the framework for maintaining separate Central and State Lists of SEBCs. The ruling also mandated the creation of Backward Classes Commissions to evaluate backwardness objectively before extending any affirmative action. In response, Parliament established the National Commission for Backward Classes (NCBC) in 1993.
Over the years, both the Union and State governments identified SEBCs independently. This dual-list structure allowed regional variations in recognising backwardness, consistent with the federal spirit of governance.

The 102nd Constitutional Amendment and Its Implications

In 2018, the Constitution (One Hundred and Second Amendment) Act elevated the NCBC to a constitutional status by inserting Article 338B, which defined its powers and functions. Simultaneously, a new Article 342A authorised the President of India to specify SEBCs for the purposes of the Central List, subject to amendment by Parliament.
Although the legislative intent was to create clarity at the central level, the amendment inadvertently raised concerns regarding the States’ power to identify SEBCs. Despite the assurance given in Parliament by the Minister of Social Justice and Empowerment, that State Lists would remain unaffected, the textual interpretation of the amendment created ambiguity over whether only the President retained the power of recognition.

The Maratha Reservations Case (Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra)

The ambiguity surrounding the 102nd Amendment came to a head in the Maratha Reservation Case (2021). The Maharashtra government had enacted legislation to grant SEBC status and reservation benefits to the Maratha community. The law was challenged before the Supreme Court, which by a 3:2 majority held that post-102nd Amendment, States no longer had the power to identify SEBCs.
The Court reasoned that the literal interpretation of Article 342A vested the power of identification solely in the President, subject to parliamentary approval. It rejected the argument that parliamentary intent should override the constitutional text. This interpretation invalidated several State Lists and caused political and social unease across the country, as States had traditionally exercised this power for decades.

Legislative Response and Passage of the 105th Amendment

The Union Government swiftly moved to rectify the situation following the Supreme Court’s judgment. When the Court refused to review its ruling in June 2021, the Constitution (One Hundred and Twenty-seventh Amendment) Bill, 2021—later renumbered as the 105th Amendment Act—was introduced in the Lok Sabha on 9 August 2021 by Dr. Virendra Kumar, Minister of Social Justice and Empowerment.
The Bill’s Statement of Objects and Reasons clarified that the legislative intent of the 102nd Amendment was confined to the Central List of SEBCs and that States must retain their independent powers to maintain separate lists for local implementation. The proposed amendment thus sought to “adequately clarify” and restore these powers.
The Bill was debated and passed unanimously in both Houses:

• Lok Sabha: Passed on 10 August 2021 with 380 votes in favour and none against.
• Rajya Sabha: Passed on 11 August 2021, again with unanimous support.

It received Presidential assent on 18 August 2021 and was published in the Gazette of India the following day. The Ministry of Law and Justice later notified that the amendment would take effect from 15 August 2021.

Key Provisions of the 105th Amendment

The amendment primarily modifies Articles 338B and 342A of the Constitution. Its key provisions include:

• Recognition of SEBCs by States and Union Territories: Each State and Union Territory may maintain its own list of SEBCs, distinct from the Central List, for the purpose of implementing local welfare schemes and reservations.
• Clarification of Definitions: The term socially and educationally backward classes (SEBCs) now explicitly applies separately to the Central and State lists, ensuring no overlap in jurisdictional competence.
• Exclusion of NCBC’s Authority over State Lists: The National Commission for Backward Classes retains its advisory role at the Central level but is no longer required to be consulted on matters concerning State Lists of SEBCs. This effectively decentralises the recognition process.

The amendment, therefore, reaffirms the federal distribution of powers, ensuring that both the Union and the States can identify and assist backward communities within their respective domains.

Judicial Consideration and Interpretation

Following the enactment of the 105th Amendment, judicial questions arose regarding its retrospective application. In a case concerning the Vanniyar community in Tamil Nadu, the Supreme Court examined whether the amendment had retrospective effect. The State had passed a law in early 2021, before the 105th Amendment came into force, sub-classifying SEBCs for reservation purposes.
The Court held that the amendment could not be interpreted retrospectively since it lacked express language to that effect. However, it observed that since the Vanniyar law merely altered the internal distribution of reservation benefits among existing SEBCs, it did not constitute fresh identification. Hence, the State retained the power to decide the quantum and classification of reservations for recognised communities.

Significance and Impact

The 105th Constitutional Amendment holds deep constitutional and social significance. It:

• Restores the federal balance between the Union and the States in matters of social justice.
• Reaffirms the principle of decentralisation, allowing States to address region-specific backwardness more effectively.
• Ensures continuity in welfare measures and reservations for SEBCs that had come under uncertainty following the Maratha case.
• Safeguards the autonomy of State Backward Classes Commissions to evaluate and update State Lists independently.

The amendment thus represents a strong reaffirmation of India’s pluralistic and cooperative federal structure, recognising that the assessment of social and educational backwardness requires contextual, localised understanding alongside national coordination. It underscores the evolving nature of India’s constitutional democracy in balancing equality, federalism, and social justice.