Constitutional Amendment Bill 2021

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The Union Government has recently moved a Constitutional Amendment Bill in Lok Sabha that proposes to restore the power of states and Union Territories to make their OBC lists for the purpose of reservation in jobs and educational institutes. It has been commonly referred to as the Constitution (127th Constitutional Amendment Bill). The bill was passed on 10 August 2021 with 385 members voting in support and no member opposing it in Lok Sabha. The Bill was passed unanimously by the Rajya Sabha as well on 11 August 2021.

Objectives of the Bill

The Constitutional Amendment Bill empowers the states to prepare their own list of other backward classes (OBCs) that are socially and educationally backward. Justifying the need for this Bill, the Social Justice and Empowerment Minister Virendra Kumar said it will help restore the powers of states to have their own lists of OBCs which were negated by the Supreme Court. He further stated that the Bill will restore the federal structure of the Constitution by providing autonomy to the States.

Background

A few days ago, the Supreme Court in Jaishri Laxman Rao Patil v. Chief Minister, Maharashtra, commonly referred to as the Maratha Reservation case, granted constitutional status to the National Commission for Backward Castes under the 102nd Constitutional Amendment Act. It interpreted Article 342A, inserted through the Amendment. It held that the authority to determine Socially and Educationally Backward Classes (SEBCs) lies only with the Centre and the President on the recommendation of the National Commission for Backward Classes.

The 102nd Constitutional Amendment Bill inserted two articles namely Articles 338B and Article 342A. Articles 338B dealt with the composition, duties, and powers of the National Commission for Backward Classes while Article 342A says that only the president would be authorized to specify the socially and educationally backward classes, in consultation with the Governor and not the States. The Bill exempts the States and Union territories from consulting it while preparing the list of OBCs. This led the opposition to question the intent of the Union Government and protest against the deprivation of State Government curtailing its powers to prepare its own list of OBCs.

The restoration of the power of the State, which was taken away by a Supreme Court interpretation, to determine its own list of the social and educationally backward classes list was necessary. In case of deprivation of autonomy, nearly 671 OBC communities would have lost access to reservations in educational institutions and appointments.

Support and Criticism of the Bill

  • Congress MP Adhir Ranjan Chowdhary stated in Lok Sabha that they will support the Bill. Since the bill deals with the reservation, he emphasized that the cap of 50% on the reservation, originated in the judgment of Indra Sawhney v. Union of India, should also be removed. It was further argued that the demography has changed now and still most of the people lack equal representation in the society.
  • The act of restoring the power of the State through the Bill has been a demand by many regional parties and even the ruling party’s own OBC leaders. As an analysis, it seems to be aiming at securing political benefits and creating goodwill among the OBC communities through welfare measures, particularly in poll-bound states such as Uttar Pradesh.
  • Some of the political parties have unanimously supported the Constitutional Amendment Bill for restoring the power of States. However, few parties including BJP’s ally JD (U), have demanded a caste-based census. It may have an impact in modifying the structure of reservation and gaining support from the backward communities.
  • A JNU professor SS Jodhka supported the act of the Government by stating that the matter of deciding OBCs rests with the States only. A caste group can be dominant in one State but not the other.

Author’s view

The State power to decide the framework of reservation for the Backward classes, nature of benefits falls into the domain of Articles 15 and 16. This shall be left on the States to decide as per the demography and the level of backwardness. Through this power, the State Government shall be able to announce welfare schemes for the upliftment of backward communities and to ensure their equal participation in society.

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