Power of states to enlist OBCs – the Constitution (127th Amendment) Bill, 2021

November 17, 2021

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This article is written by Ojasvi Gupta, a student of the Law School, Banaras Hindu University. It reviews the recently passed Constitution (127th Amendment) Bill and attempts to understand its need and its impact on the State.

Table of Contents

Introduction

The conflicted history of backward classes, along with the scheduled castes and tribes in India, is no hidden fact. The historical social structure of caste has placed individuals in an intricate web of social organization by determining the social order. The caste system, in the name of establishing and maintaining social status, has led to the exploitation of the lower castes over the millennia, though social reform movements and legal protection have curbed it down a notch.

Historically, OBCs are those communities that exist one status above the lowest rungs of castes but are far away from the higher castes, deprived in terms of social, educational, and economic aspects. To assess their position and ensure holistic development, various committees have been set up by the government. Committees like Kalelkar Committee and Mandal Committee were constituted with the primary aim of identifying the communities which are materially backward and bringing them under the benefit of State-sponsored welfare. Reservations play a vital part in the actualization of this goal. For this reason, the Hundred and Twenty Seventh Constitution Amendment Bill, 2021 a legislation bringing new dynamics in the OBC politics is being analyzed.

Background

The 127th Amendment Bill of the Constitution, now enacted as the 105th Constitution (Amendment) Act, was introduced by the Ministry of Social Justice and Empowerment on August 9, 2021. It was passed unanimously by both the Houses of the legislature on subsequent days without any delay. The main aim behind bringing in this legislation was to restore the power of the states to identify backward classes of their respective state.

OBC and SEBC

In India, a separate list is drawn up by the Centre which recognizes the Other Backward Classes (OBC). Similarly, each State identifies the classes which are Socially and Educationally Backward Classes (SEBC) in the concerned State. These lists are crucial for the structure of reservation and quotas provided under the Constitution of India through provisions of Articles 15(4), 15(5), and 16(4).

102nd Constitution Amendment Act, 2018

Introduced in 2017 in the Lok Sabha and passed after a year, the 123rd Constitution Amendment Bill aimed to establish the National Commission on Backward Classes (NCBC) as a constitutional body, at par with the National Commission for Scheduled Tribes and the National Commission for Scheduled Castes (NCSC). The major changes it brought forth are as follows:

It granted constitutional status to NCBC by introducing Article 338B. The scope of NCBC operation was also expanded to place it pari passu i.e. on equal footing with the Commissions for SC and ST provided under Article 338 and 338A, respectively.
Secondly, Article 342A was added to the Constitution, which stated the process for the identification of socially and educationally backward classes under this category. This too parallels Articles 341 and 342, which are used to identify SC and ST.
Finally, clause 26 C was inserted into Article 366, to define what SEBC means. It consists of all those classes which are declared backward under Article 342A for the scope of the Indian Constitution.

Implication

The legislative goal behind the Constitution (102nd Amendment) Act, 2018 was to deal with the Central List of the Socially and Educationally Backward Classes (SEBCs). Since 1993, there have always existed separate lists of the backward classes by the Central Government and by the State Governments. But the Constitution (102nd Amendment) Act, 2018 raised the question as to whether it mandated for a single Central List of SEBCs specifying the SEBCs for each State, thereby taking away the powers of the State to prepare and maintain a separate State List of SEBCs. Moreover, the Central government already had the power to publish lists so the addition of Central in the then amended Article 342A was a redundancy.

Maharashtra reservation case

The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, was much-contested legislation till it was declared unconstitutional by the Supreme Court in Jaishri Laxmanrao Patil v. Chief Minister (2021).

Facts of the case

Various writ petitions were filed in the Bombay High Court challenging the constitutional validity of the reservation Act. The main arguments raised by the petitioner were as follows:

The Act is unconstitutional as it surpasses the 50% ceiling limit imposed on the reservation in any state by the judgement in Indra Sawhney v. Union of India (1992).
The Act provides reservations on the basis of the report presented by Justice Gaikwad Commission, which, allegedly, lacks reliable, scientific, and adequate data to justify either the backwardness of Marathas or the extraordinary conditions which validate increasing reservations in Maharashtra state.
The Act was passed by the state government without meeting the procedural requirements of the 102nd Constitution (Amendment) Act, 2018.

The Maharashtra State Government, as the respondent had contended that extraordinary conditions such as the increase in the number of suicides due to social and economic factors among Maratha families justify the Act.

Judgment

The Bombay High Court while refusing to put an interim stay on the Act, upheld the reservation for the Marathas but asked the state government to reduce it to 12-13 percent – the recommended number by the State Backward Class Commission, from the, provided 16 percent. The rationale was that the ceiling imposed by the Supreme Court on the total percentage of quotas could be exceeded in exceptional circumstances, as shown by the Maharashtrian government.

Appeal

On 12 July 2019, the Supreme Court admitted an appeal to the Bombay High Court’s decision in the favour of the Maharashtra state government. The bench differed from the High Court decision and struck down the SEBC Act on account of no extraordinary circumstances present that provide for violating the 50% mark on the reservation. This was the decision of the Bench unanimously.

Meanwhile, the interpretation that the 102nd Constitutional Amendment deprived the state of the authority to identify backward classes was the opinion of the majority of the Bench excluding two. The verdict was that only the President can notify a list that identifies the backward classes, which Parliament can amend thereafter. States have only recommending power in this regard. Justices Bhushan and Nazeer dissented on this issue and were of the opinion that Parliament did not intend to take the States’ powers of identification.

Need of the 127th Constitution Amendment Bill

After the Supreme Court upheld the 102nd Constitutional Amendment Act to be constitutional in its Maratha reservation ruling and stated that the President, based on the recommendations of the NCBC, would determine which communities would be included on OBC list for the State as well as the Centre, a change was required to restore the state-Centre balance.
The judicial interpretation gave the final power to the hands of the Centre. Article 338B makes it binding on the Commission to share the report concerning matters of identification with the State but the final determination culminates in the Central government under Article 342A (1).
Although it was clarified that the States’ power to make reservations, in favour of communities of the lists, including reservations in educational institutions and promotions, and all other matters falling within the ambit of Articles 15 and 16 remain undisturbed, the only limitation placed was regarding the identification of SEBCs.
Hence, to fully clarify that the State Government and Union Territory are empowered to create and maintain their own SEBC State List / Union Territory List, and to maintain the federal structure of the country, the 2021 Amendment was anticipated by many.
For instance, if all the state lists were abolished, nearly 6 7 1 OBC communities would have to lose access to reservations in educational institutions, appointments and promotions. This has the potential to adversely impact a good chunk of the total OBC communities (approximately 20%) existing in India.
Along with this, three other states- Tamil Nadu, Haryana, and Chhattisgarh have introduced quotas in their states that breach the 50 percent ceiling while some including Rajasthan, Gujarat, Karnataka and Jharkhand have requested the Supreme Court to raise the quota limit.

Changes brought about by the 127th Amendment Bill

The Bill amends the Constitution to allow States and Union Territories to prepare and maintain their own list of backward classes. The specific changes are as follows:

The 127th Constitution Amendment Bill amends clauses 1 and 2 of Article 342A and also introduces clause 3 which authorizes the States and UT’s to decide on their own list of the backward classes, irrespective of the fact that it may differ from the Central list.
The Bill states the consequential amendments in Articles 366 (26c) – which defines SEBC and 338B clause 9 by adding a proviso that nothing in this clause shall apply for the purposes of Article 342A (3).
This makes the State list out of the ambit of the President, and thus the states will be able to directly notify SEBCs without having to refer to the National Commission for Backward Classes (NCBC).

Impact of the Constitution (127th Amendment) Bill on Backward Classes

Dr. Virendra Kumar, the Minister introducing the Bill stated that it was historic legislation as 671 caste groups in the country would benefit from it. Thus the 105th Constitution Amendment Act explicitly restores the States’ rights to identify and declare their own list of Backward Classes that are at a disadvantage in terms of social and economical status.

The Bill has significant political ramifications as restoring States’ powers to identify backward classes has been a demand by many regional parties including the ruling party’s own OBC leaders. The BJP, and the Opposition parties, alike, want the OBC communities to be on their side in the poll-bound states, especially in the politically crucial Uttar Pradesh, which will be having an election in 2022.

This political angle is the main reason forcing the Opposition parties to be on the same page with the government as refusal or delay in this regard might have a disastrous fallout on their reputation and support among the OBCs.

The Amendment that allows state governments to add communities to the OBC lists that they deem fit is significant as it allows the benefits of OBC reservation to reach the grass-root level.
Secondly, the position of NCBC is reaffirmed by mandating states to hold consultation with the statutory body in all matters related to OBCs. This provides clarity as well as rigidity to the welfare measure for the weaker section of the society
When seen in the light of the evolution of the OBC reservation of early days which aimed for immediate outcomes (ad-hocism) to the current mechanism of institutionalization, it is a strengthening step.

Although it’s too soon to predict, the implications of the 127th Constitution Amendment Bill are going to be far and wide. There have been some improvements but it holds true that the rigid social structure and institutional hierarchies in India have remained unchanged even after reservations were given to the weaker communities. The upper castes still have a hold on or are themselves the elites of the country, be it political or social.

The reservation system as a mechanism of positive discrimination has the potential to change the existing social relations to the benefit of those who have been exploited since decades and more. This decision could be a milestone for creating a new identity in India.

Reaction of political leaders to the Bill

In what came out as a surprising move, the Opposition supported the 127th Constitution Amendment Bill wholeheartedly. The Opposition’s support to pass the Bill was significant as a constitutional amendment requires a two-thirds majority of lawmakers who are present during the proceedings, with at least 50% in attendance. During the course of the discussion on the Bill, several opposition leaders quipped the successful enactment of the bill to the upcoming assembly polls in Uttar Pradesh as OBCs are known to play a significant role in the voter turnout.

Mallikarjun Kharge, the Leader of Opposition in Rajya Sabha, himself stated that the Bill was supported by all opposition parties. The Indian National Congress supported the Bill while pointing out that several states want to increase the 50 percent ceiling of reservation.
Lead speaker for the Opposition in the Lok Sabha, Adhir Ranjan Chowdhary reasoned out a unique point in favour of the Bill. He said that the Bill was required at present because the ruling government had not paid heed to the suggestions of the Opposition during the debate on the 102nd Constitutional Amendment, 2018.
Nationalist Congress Party (NCP) leader Supriya Sule, whose party was the frontrunner in Maharashtra for pushing the Maratha reservation in connection with which the Supreme Court delivered its verdict on the Centre being the final ‘messiah’ of OBCs, said that the credit goes to the Maharashtra government which requested the Centre to move the Bill to address the need to the hour issue.
Dravida Munnetra Kazhagam (DMK) MP Dayanidhi Maran said he hoped the UP elections came every year as seems the only way through which the government will think about the welfare of the backward population and also highlighted the role Tamil Nadu’ played in recognizing the concerns of the backward classes.
AIMIM chief Asaduddin Owaisi also extended support for the Bill while commenting on the government for playing vote-bank politics and questioned why the government was only supporting a few backward classes under the 50 percent cap on reservations. He went further and demanded that the 1950 Presidential order, which provides reservation to Scheduled castes, should not be based on religion so that Muslims can also benefit from it. This demand was also raised by other MPs regarding reservations for Christians.
Samajwadi Party leader, Akhilesh Yadav asserted the Centre’s commitment to social justice and criticized the government for playing with the reservation system to maximize their benefit at the cost of the welfare of the backward community. He also pointed out the anti-reservation stance of the government is indicated by the 50 percent cap on reservations. The leader reminded the role the OBCs play in the formation of government and implored that the caste census data be made public.
Many parties, including Samajwadi Party, the Telugu Desam Party, Apna Dal, and Janata Dal mentioned the need for a caste-based census to give the necessary data for planning the schemes for OBCs in the country.

Conclusion

The significance of this Constitutional Amendment is a reflection of the greater need for development and growth in our society, especially to those individuals who require it the most, owing to their backwardness. The fact that numerous communities need the cover of OBC categorization and not just for the political powerplay is related to the idea that there is a huge scope for the development of many of them in India. The rigid caste system has not yet been broken down and this grim reality needs further introspection and policy innovation. Another concern that arises from this Amendment is how States act upon the responsibility as States, now will be compelled by the local politics to add newer communities into their respective OBC lists. It is to be cautioned that exercise of this power does not end up diluting the intent and effects of this path-breaking Amendment.

Thus, the Constitution Amendment Bill has brought much clarity in the standard operating procedures of functioning of OBC reservation, ensuring representation and empowerment to the communities that often get left out from inclusive development discourse. It aims to empower the people from backward communities, enhancing their social status through good education and employment opportunities, paving the way for inclusive development. Particularly during the time of pandemic and facing economic hardships, the 127th Constitution Amendment Bill might be able to bridge the widening gulf of destitution and poverty.

References

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