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

November 17, 2021
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source: http://www.erewise.com/current-affairs/constitutional-amendments_art52d7a5e1569fd.html

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.

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:

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 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

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:

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.

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.

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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