The Lok Sabha, on Tuesday, August 10, passed the Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021, a Bill aimed at restoring the power of states to make their own Other Backward Class (OBC) lists, which had been overturned by the Supreme Court earlier this year in May through its Maratha judgment. For the first time since the Monsoon session of Parliament began on July 19, the Lok Sabha witnessed a debate in an orderly manner as the protests over the Pegasus row were put on hold for the Bill, which was passed with 385 members voting in support and no member opposing it.
The Bill received a consensus even from the opposition as it has been a long standing demand from across political parties - and even from OBC leaders within the BJP. The Bill also has political ramifications, as political parties have an eye firmly on the Uttar Pradesh Assembly elections scheduled to be held in 2022, and they are looking to tap into the OBC vote bank. Parties can now choose which communities can be included in Backward Classes, and as per reports, the BJP is planning on including 39 castes in the Other Backward Classes List.
The 102nd Constitution Amendment Act of 2018 inserted articles 338B, which 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), which was also inserted, defines SEBCs.
The Bill amends the Constitution to allow states and Union Territories to prepare their own list of socially and educationally backward classes. In 2018, the Union government had given constitutional powers to the National Commission for Backward Classes (NCBC) to centrally approve a list of socially and educationally backward classes for any state or Union Territory for all purposes.
Now, as per PRS Legislative, this new amendment says that the President may notify the list of socially and educationally backward classes only for purposes of the Union government. This list will be prepared and maintained by the Union government. The Bill exempts states and Union Territories from mandatory consultation with the NCBC to prepare their list of socially and educationally backward classes. The new Bill enables states and Union Territories to prepare their own list of socially and educationally backward classes, and this list must be made by law, and may differ from the central list.
The Supreme Court had earlier dismissed the Union government’s plea seeking a review of its May 5 majority verdict that held that the 102nd Constitution amendment took away the states' power to notify SEBCs for the grant of quota in jobs and admissions. After protests from multiple states and pressure from political leaders, the Union government then decided to move a Bill amending the Constitution and to allow states to identify these backward classes.
A Constitution Amendment Bill requires that there should be a majority of the total membership of the House and by a majority of not less than two-thirds of the members of that House present and voting. The Bill was passed as the 105th Constitution Amendment Bill after being renumbered. The opposition has maintained that it backs the legislation, but has demanded the removal of the 50% cap on reservation. In the lower house of Parliament, many parties also called for a caste-based census. Many leaders such as BJP ally JD(U)'s Lalan Singh, Samajwadi Party's Akhilesh Yadav, BSP's Ritesh Pandey and DMK's TR Baalu pitched for a caste-based census to be conducted throughout the country.
In the Lok Sabha on Tuesday, Union Social Justice and Empowerment Minister Virendra Kumar said there is a need for careful examination of the demand made by several Lok Sabha members for increasing the cap of reservation beyond 50% as constitutional issues are involved. Moving the Bill for consideration and passage, Kumar described the Bill as a historic legislation as 671 castes in the country would benefit from it.
Several opposition parties, including the Congress, demanded a removal of the 50% cap on reservations, while the government underlined its commitment to social justice. Initiating the debate, Congress leader in Lok Sabha Adhir Ranjan Chowdhury extended his party's wholehearted support to the Bill but criticised the government for the 2018 amendment, saying had the government inserted the suggestion proposed by the opposition, today's situation would not have arisen. "You tweaked the Constitution by bringing the 102 Constitution Amendment Bill in 2018 which gave people an opportunity to go to the court and finally the Supreme Court removed the states' power," he said.
Chowdhury also slammed the government for allegedly running away from debate on the issue of "snooping" through the Pegasus spyware, saying country after country — like Hungary, the US and Israel — have ordered a probe into the controversial issue. "We support this Bill but our demand is to remove the 50% ceiling (in reservation). You should listen to states, make it legal for states to cross the 50% ceiling," Chowdhury said. DMK's Baalu and SP's Yadav also demanded the removal of 50% ceiling in reservation.
Replying to the debate, Kumar said that the government is aware of the wishes of the members. "Therefore, it is necessary to carefully examine all constitutional and legal aspects in this regard," the minister said. He stated that in the Indra Sawhney case, the court has observed that the limit can be increased beyond 50% only in certain special circumstances. Intervening in the debate, Labour and Employment Minister Bhupender Yadav asserted that maximum measures have been taken at a fast pace to ensure justice for Dalits, OBCs and the poor by the Modi government.
Participating in the discussion, Supriya Sule (NCP) said the credit for this amendment Bill should be given to the Maharashtra government which requested the Union government to address the issue of OBC reservation. Sule said another important issue along with this legislation is to address the 50% ceiling on reservation without which the amendment will not fully resolve the issue.
YSR Congress Party and Shiv Sena also voiced support for the Bill. All India Majlis-e-Ittehad-ul-Muslimeen 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% cap on reservation.
Hasnain Masoodi, from the NC, accused the government of "breaking the federal structure of the country" by dividing Jammu and Kashmir into two Union Territories. He wondered if the government could downgrade the other 28 states into Union Territories. Harsimrat Kaur Badal (SAD) wanted the House to discuss the issue of farmers who have been sitting on the roads for months. She said that although the government had promised income to farmers, it has ended up increasing prices, causing more hardship to the poor.
With PTI inputs