In the ongoing Monsoon Session of Parliament that ends this Friday, the government will introduce the 127th Constitution Amendment Bill in Parliament to clarify “some provisions in the 102nd Constitutional amendment Bill” to restore the power of the states to identify backward classes.
According to the Constitution of India, Articles 15(4), 15(5) and 16(4) confer power on a state to identify and declare the list of socially and educationally backward classes. As a matter of practice, separate OBC lists are drawn up by the Centre and each state concerned.
Why is the 127th Constitution Amendment Bill needed?
The amendment was necessitated after the Supreme Court in its Maratha reservation ruling in May upheld the 102nd Constitutional Amendment Act but said 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.
The 102nd Constitution Amendment Act of 2018 had inserted Articles 338B and Article 342A (with two clauses) after Article 342. Articles 338B deals with the structure, duties and powers of the National Commission for Backward Classes. Article 342A says that the president, in consultation with the governor, would specify the socially and educationally backward classes.
The amendment is necessary to restore the powers of the state governments to maintain a state list of OBCs which was taken away by a Supreme Court interpretation. If the state list gets abolished, nearly 671 OBC communities would lose access to reservations in educational institutions and in appointments. This would adversely impact nearly one-fifth of the total OBC communities.
Why did the SC intervene?
The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, has had a rollercoaster ride till it was held to be unconstitutional by the Supreme Court in its 5 May judgment. The first challenge to the quota was filed in the Bombay High Court right after the state government passed the legislation.
Petitioners said that the quota violated the Supreme Court order in the Indira Sawhney case in 1992 that had ruled that reservation in any state should not exceed the 50 percent mark.
In December 2018, the Bombay HC refused to put an interim stay on the quota law even as it was hearing the case. Eventually, in its judgment in June 2019, the high court upheld the Maratha quota but asked the state government to reduce it from 16 percent to 12 to 13 percent, which was also what was recommended by the State Backward Class Commission. On the question of breaching of the 50 percent mark, the HC held that the ceiling imposed by the Supreme Court could be exceeded in exceptional circumstances.
However, the Constitution Bench of the apex court sought to differ on that reading.
"We have found that no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 percent ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any exceptional circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires," the verdict said.
It must be noted that at least three other states — Tamil Nadu, Haryana and Chhattisgarh — have introduced quotas that breach the total 50 percent ceiling while some others, including the likes of Rajasthan, Gujarat, Karnataka and Jharkhand have asked the Supreme Court to hike the quota ceiling.
What will the 127th Constitution Amendment Bill introduce?
The 127th Constitution Amendment Bill will amend clauses 1 and 2 of Article 342A and also introduce a new clause 3. The Bill will also amend Articles 366 (26c) and 338B (9).
The 127th Amendment Bill is designed to clarify that the states can maintain the "state list" of OBCs as was the system prior to the Supreme Court judgment. Articles 366 (26c) defines socially and educationally backward classes.
The "state list" will be completely taken out of the ambit of the president and will be notified by the state Assembly as per the proposed Bill.
What is the procedure to get 127th Constitution Amendment Bill passed?
An amendment of the Constitution can be initiated only by the introduction of a bill in either House of Parliament.
The bill must then be passed in each House by a majority of the total membership of that House and by a special majority of not less than two-thirds of the members present and voting. In case of disagreement between the two Houses, there is no provision for a joint sitting.
If the amendment seeks to make any change in any of the provisions mentioned in the provision to Article 368, it must be ratified by the Legislatures of not less than one-half of the states. Although there is no prescribed time limit for ratification, it must be completed before the amending bill is presented to the president for his assent.
Why Oppn supports it
The Opposition on Monday said it will support 127th Constitution Amendment Bill which gives power to the states in identifying OBCs. "All Opposition parties will support 127th Constitution Amendment Bill 2021 being introduced in Parliament today," Mallikarjun Kharge, Leader of Opposition in Rajya Sabha, said.
However, Rajya Sabha proceedings were on Monday adjourned soon after it started off for an hour till after Opposition parties insisted on a discussion on the issue of Israeli-made military-grade Pegasus spyware allegedly being used to snoop on Opposition leaders, government critics and journalists.
In Lok Sabha, proceedings on Monday were adjourned for the second time till noon following uproar by Opposition members over various issues primarily wanting to discuss the Pegasus spyware controversy.Floor leaders from 15 Opposition parties met early including Congress, DMK, TMC, NCP, Shiv Sena, SP, CPM, RJD, AAP, CPI, National Conference IUML, LJD, RSP and KC(M) met today.
Union minister Virendra Kumar is expected to introduce the Bill in Lok Sabha today. The Business Advisory Committee has recommended an allotment of four hours for discussion and passing of the Bill. The Opposition has promised to cooperate during the discussion.
The Bill has political ramifications as restoring powers of the states to identify backward classes has been a demand by many regional parties and even the ruling party’s own OBC leaders. The BJP, and the Opposition parties, including the Congress, want to get support among the OBC communities in the poll-bound states, especially in the politically crucial Uttar Pradesh.
The political angle has forced the Opposition parties to be on the same page with the government as non-cooperation with the treasury benches in this regard might have a disastrous fallout on their reputation among the OBCs.
The Opposition's support to pass the Bill is significant as a constitutional amendment requires a two-thirds majority of lawmakers who are present during the proceedings, with at least 50 percent in attendance.