The passage of the Constitution (127th Amendment) Bill in the Parliament saw a rare consensus in both Houses of the Parliament with all the members voting in support and no member opposing it. Aimed at restoring the power of states to make their own lists of Other Backward Classes (OBCs), the bill is expected to become a law soon, owing to unanimous support across party lines.
The Amendment Bill seeks to restore the powers to states to notify backward classes, bypassing a May 2021 verdict of the Supreme Court which allowed only the Centre to notify socially and educationally backward classes (SEBCs).
What is the Supreme Court’s May 21 verdict?
In a categorical verdict while hearing the Maratha quota issue, the Supreme Court had on May 5 upheld the 102nd Constitutional Amendment but said that the President, based on the recommendations of the National Commission for Backward Classes (NCBC), would determine which communities would be included on the state OBC list.
“In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it. If the commission prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, under Article 342A (1), by reason of Article 367 read with Section 3 (8) (b) General Clauses Act),” the judgment read.
“The states’ power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 – except with respect to identification of SEBCs, remains undisturbed,” it said.
What is the 127th Amendment Bill?
The 102nd Constitution Amendment Act has inserted three new articles – 342A, 366 (26C) and 338B – in the Constitution. Of these, 338B deals with the structure, duties and powers of the National Commission for Backward Classes, and 342A that deals with the powers of the president to notify a particular caste as Socially and Educationally Backward Communities (SEBCs) and the power of Parliament to change the list. Article 366 (26C) defines SEBCs.
“The legislative intent at the time of passing of the Constitution (One Hundred and Second Amendment) Act, 2018 was that it deals with the central list of the socially and educationally backward classes (SEBCs). It recognises the fact that even prior to the declaration of the Central List of SEBCs in 1993, many States/Union territories are having their own State List/Union territory List of OBCs,” the statement in the bill notes.
However, the 102nd Amendment Act raised the issue of the single central list of SEBCs taking away the powers of the states to prepare their own list of OBCs. The Supreme Court, in its categorical ruling on May 5, also directed that following the amendment, states did not have power to identify SEBCs, separately from the Centre.
The central government filed a review petition challenging the top court’s order, which was dismissed. Eventually, the Centre came up with the bill to undo the Supreme Court ruling.
Why is the Opposition supporting the bill?
The passage of the Constitution (127th Amendment) Bill witnessed a consensus even as ruckus continued in the Parliament over the Pegasus spyware row and farm laws. But the question arises why the parties have unanimously supported the bill.
A considerable reason can be seen in the upcoming assembly polls in Uttar Pradesh, Manipur, Punjab, Goa and Uttarakhand which are due early next year. It can be said that all the parties are looking at the OBC vote bank, keeping the upcoming polls in mind, especially in the politically crucial state of Uttar Pradesh.
The 2014 Lok Sabha election and 2017 assembly poll results clearly show how the BJP has been able to add non-Yadav OBC castes such as Kurmi, Kushwaha, Lodh, Jat to its kitty. Before the 2022 polls, the party must be looking to further consolidate its hold among OBC voters which account for around 40 per cent of the state populace.
What the Opposition leaders said?
Hailing the passage of the bill in the Parliament, Prime Minister Narendra Modi said that it underscores his government’s commitment to ensuring dignity, opportunity and justice to the marginalised sections. “Passage of the Constitution (127th Amendment) Bill, 2021 in both Houses is a landmark moment for our nation. This Bill furthers social empowerment. It also reflects our Government’s commitment to ensuring dignity, opportunity and justice to the marginalised sections,” he said in a tweet.
Many leaders such as BJP ally JD(U)’s Lalan Singh, Samajwadi Party’s Akhilesh Yadav, BSP’s Ritesh Pandey and DMK’s T R Baalu pitched for a caste-based census be conducted throughout the country.
Several Opposition parties, including the Congress, demanded a removal of the 50 per cent cap on reservations, while the government underlined its commitment to social justice.
Supriya Sure (NCP) said the credit should for this amendment bill should be given to the Maharashtra government which requested the Centre to do address the issue of OBC reservation.
YSR Congress Party and Shiv Sena also voiced support for the bill. AIMIM chief Asaduddin Owaisi accused the government of using OBCs as a vote bank, saying little has been done to uplift the community in actual terms. He also turned to the Treasury benches and used the Hindi song line — “jab pyaar kiya toh darna kya” while exhorting the government to remove the 50 per cent cap on reservation.
What powers will the states get?
Following the amendment in Articles 366 (26C) and 338B (9), states will be able to directly notify OBC and SEBCs without having to refer to the NCBC, and the OBC lists prepared by states will be taken out of the domain of the President and notified by the Assembly. “The Amendment is found necessary to restore the powers of the state governments to maintain state list of OBCs which was taken away by a Supreme Court interpretation,” The Indian Express quoted a ministry official as saying.
“Nearly 671 OBC communities would have lost access to reservation in educational institutions and in appointments if the state list was abolished. Moreover, nearly one-fifth of the total OBC communities would have been adversely impacted by this,” the official added.
