This article is written by Harsh Gupta from the School of law, HILSR, Jamia Hamdard. This is an exhaustive article which deals with the constitutional validity of the 102nd constitutional amendment and subsequently with the power of the state to list OBCs.
Table of Contents
Traditionally, the OBCs have been classified as Socially and Educationally Backward Classes (SEBCs) in the Indian Constitution, requiring the Government of India to support their educational and social development.
For example, OBCs enjoy 27% reservations in public employment and higher education. As castes and communities are added or removed according to social, education, and economic factors, the Ministry of Social Justice and Empowerment maintains a list of OBCs. As of January 2016, according to Union Minister Jitendra Singh’s response to a Lok Sabha question (whether the representation of SCs and STs is more than the prescribed percentage of reservation), 21.57% of Central government employees belong to the OBC category. Furthermore, in 2015, funds meant for OBC students were not used correctly or were underused by educational institutions to upgrade infrastructure as well as recruit faculty members from OBC backgrounds.
The affairs of the backward classes were handled by the Backward Classes Cell in the Ministry of Home Affairs until 1985. A separate Ministry of Welfare was established in 1985 (renamed in 1998 to the Ministry of Social Justice and Empowerment) to deal with issues about Scheduled Castes, Scheduled Tribes, and Other Backward Classes. It is the responsibility of the Ministry of Social Justice and Empowerment to formulate and implement policies related to social and economic empowerment of the OBCs as well as oversee two institutions established for their welfare, the National Backward Classes Finance and Development Corporation and the National Commission for Backward Classes. An in-depth discussion of the power of states in listing OBCs is presented in this article.
102nd Constitutional Amendment
102nd Constitutional Amendment was introduced by Thawar Chand Gehlot, who was the Minister of Social Justice and Empowerment on 5th, April 2017 and it was passed by the Lok Sabha on 10th April 2017, it was also presented in the Rajya sabha on the following day where the motion was adopted by Parliamentary Select Committee of 25 members under the chairmanship of Bhupendra Yadav. The Committee presented its report on 19th July 2017, then on 31st July 2017, for Lok Sabha’s approval. On the other hand, the Lok Sabha did not adopt the change recommended by the Rajya Sabha and the Bill was passed on 2 August 2018. The amendment introduced Articles 338B and 342A into the Indian Constitution.
Article 338B of the Constitution specifies the structure, duties, and powers of the National Commission for Backward Classes (NCBC). Whereas Article 342A states that, the President of India is given the power to declare a particular caste as a Socially and Educationally Backward Class (SEBC), which can be modified by the Parliament. Additionally, the amendment made changes to Article 366 in which clause 26 C was added which defines socially and educationally backward classes. Finally, the Commission was set up in 1993.
The NCBC gained a constitutional status after the 102nd constitutional amendment was passed. According to Article 338B, the Commission shall be comprised of the following members, who are to be appointed by the President:
- Three other members.
According to Article 338B, the commission has the following duties:
- Evaluating the effectiveness of the safeguards for socially and educationally backward classes provided under the Indian Constitution and applicable laws or orders of the Government and investigating matters related to such safeguards.
- Investigating specific complaints relating to the deprivation of rights and safeguards of socially and educationally backward classes.
- Approving the social and educational progress of the socially and educationally backward classes, as well as participating in their development and advising on it.
- Reporting on the effectiveness of those safeguards to the President annually or whenever necessary. Making recommendations for measures that can be taken by the Central or state governments to effectively implement safeguards and other measures for the protection, welfare, and socio-economic development of the socially and educationally backward classes.
- Taking any other action that may be required as part of the protection, welfare, and development and advancement of socially and educationally backward classes as determined by the Parliament. In addition, the Article gives the Commission all the powers of a civil court while investigating complaints regarding deprivation of rights and safeguards of the socially backward classes.
Upholding the constitutional validity of the 102nd Constitutional Amendment
- Supreme Court in the case of Dr. Jaishri Laxmanrao Patil v. Chief Minister(2021) (3:2 ratio) ruled that the 102nd Constitutional Amendment, which also led to the establishment of a National Commission for Backward Classes (NCBC), stripped states’ power to identify backward units within their borders for quota in employment and admissions.
- Five judge bench led by Justice Ashok Bhushan ruled against the Maratha reservation law and voted not to revisit the 1992 Indira Sawhney judgment capping reservation at 50 percent.
- As to whether the 102 Constitutional amendment strips the right of states to identify the SEBC, Justice Bhushan authored a 412-page verdict for himself and Justice Nazeer.
- Justice S Ravindra Bhat wrote the 132-page verdict, and Justices L Nageswara Rao and Hemant Gupta concurred in their separate judgments that states cannot identify SEBC as being under their territory after the 102nd Constitutional Amendment.
- The majority judgment on this issue was written by Justice Bhat, who stated, “By introducing Articles 366 (26C) and 342A through the 102nd amendment, the President alone, and not any other authority, has the authority to identify SEBCs and list them in a list published under Article 342A (1), which shall be considered to include SEBCs in each state and union territory for purposes of the Constitution. “
- According to Justice Bhat, the states can make suggestions to the President of the Commission for ‘inclusion, exclusion, or modification of castes or communities’ in the SEBC list through their existing mechanisms or statutory commissions.
- In this appeal, two judges agreed that the states’ power to make reservations in favour of communities or castes, the quantum of reservations, the nature of benefits, and the kind of reservations – except for the identification of SEBCs – should remain intact.
- Nevertheless, all five judges ruled that the 102 Constitutional amendment was valid and did not affect federal polity or violate the Constitution’s basic structure.
Power of states to make their own OBCs list
NCBC Act 1993 was passed taking the motivation from Indira Sawhney judgment in that Section 2(c) defines lists as “lists prepared by the Government of India from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of the Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India”.
In Shiv Sangram v/s Union of India and others (2021), the High Court noticed the parliamentary process including the report of the Select Committee and the issue was raised whether the Constitution (One Hundred and Second Amendment) Act, 2018 affected the Legislature’s ability to enact legislation. The High Court held that the Central List used in sub-clause (2) of Article 342A is not in a vacuum but must be read in the context of considering that there are two lists in operation in various states for providing both Central and state services. The High Court ruled that since the Central Government has given the State Governments the power to provide reservations via the Central List as well, the Parliament was intended to retain this power. Additionally, if Parliament had intended to strip the State of its authority, it would have explicitly stated as such. The High Court rejected the argument of the learned counsel for the appellants that the Constitution 102nd amendment robbed the State of its power to legislate on behalf of other backward categories.
Current status : Centre restoring states’ power to decide the OBCs list
By bringing a 127th Constitutional Amendment Bill, the Centre will give back the states the power to decide about reservations for Other Backward Classes (OBCs) in state government jobs and higher educational institutions.
The purpose of the Bill is to overturn the ruling of May 5, 2021, in the case of Dr. Jaishri Laxmanrao Patil v. Chief Minister in which a 5-judge Constitution Bench of the Supreme Court ruled that only the President can declare a community an OBC, upon recommendation by the National Commission for Backward Classes (NCBC). On the review petition filed by the Centre, the judgment was upheld early this July.
The draft Bill prepared by the Ministry of Social Justice and Empowerment seeks to add a clarification clause in Article 342A which says that states are given the power to identify and include OBCs or socially and educationally backward classes in their respective lists. By law, the amendment is not in conflict with the Apex Court’s decision.
Two new clauses were added to Article 342A in the 102nd Constitution Amendment, the first clause provides the President with the power to declare backward classes in consultation with the state Governor. Another clause (2) was added which provided that Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class.
Article 342A(3) has been inserted in the 105th Constitutional Amendment Act, which specifically states that the state governments have the authority to notify OBCs on the state list, removing their handicap caused by the Apex Court ruling preventing them from including any new OBCs for reservation purposes.
In the author’s opinion, it is the right step to restore the power to decide and maintain OBCs list in states as it will bring more transparency at the state level and people can greatly benefit from it. On August 10, the Lok Sabha and on August 11, the Rajya Sabha passed the legislation. Ram Nath Kovind has given his assent to the Constitution (105th Amendment) Act 2021, which restores state governments’ ability to designate Other Backward Classes.
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