Constitutional (127th) Amendment Bill 2021

Context:

The Government is planning to bring a Bill to Parliament to clarify “some provisions in the 102^nd Constitutional amendment Bill” to restore the power of the states to identify backward classes.

• In India, separate OBC lists are drawn up by the Centre and each state concerned. Articles 15(4), 15(5) and 16(4) expressly conferred power on a state to identify and declare the list of socially and educationally backward classes.

About the 102^nd CAA

• The 102^nd  CAA, 2018 has given constitutional status to the National Commission for Backward Classes (NCBC).
• With this, NCBC gets powers to examine the grievances in the implementation of the various welfare schemes meant for OBCs.
• The status of the Central list of OBCs has been elevated by giving constitutional status to the list.
• It has given powers to the Parliament to make changes in the Central OBC list.
• The 102^nd Constitution Amendment Act of 2018 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.

New changes in Constitutional (127th) Amendment Bill 2021

• Constitutional (127th) Amendment Bill 2021 was introduced in Lok Sabha by the Minister of Social Justice and Empowerment, Dr. Virendra Kumar, on August 9, 2021.  The Bill amends the Constitution to allow states and union territories to prepare their own list of socially and educationally backward classes. 
   
• List of socially and educationally backward classes: The National Commission for Backward Classes (NCBC) was established under the National Commission for Backward Classes Act, 1993.  The Constitution (One Hundred and Second Amendment) Act, 2018 gave constitutional status to the NCBC, and empowered the President to notify the list of socially and educationally backward classes for any state or union territory for all purposes.  The 2021 Bill amends this to provide that the President may notify the list of socially and educationally backward classes only for purposes of the central government.  This central list will be prepared and maintained by the central government.  Further, the Bill enables states and union territories to prepare their own list of socially and educationally backward classes.   This list must be made by law, and may differ from the central list.
   
• Consultation with the NCBC: Article 338B of the Constitution mandates the central and state governments to consult the NCBC on all major policy matters affecting the socially and educationally backward classes.  The Bill exempts states and union territories from this requirement for matters related to preparation of their list of socially and educationally backward classes.

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 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,”
• 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.

Constitutional Amendment

• Amending the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law.
• The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India.
• There is a limitation imposed on the amending power of the constitution of India.
• The most famous among them is the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala (1973).

Procedure

• 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.
• There is no provision for a joint sitting in case of disagreement between the two Houses.
• 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.

Types:

1. Simple majority of the Parliament: Creation of new states, Delimitation of constituencies etc.
2. Special majority of the Parliament: for Fundamental rights and DPSPs
3. Special majority of the Parliament and the ratification of at least half of the state legislatures: Election of the President and its manner, Supreme Court and high courts etc.

Way Forward

• 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.
  • If the state list was abolished, nearly 671 OBC communities would have lost access to reservation in educational institutions and in appointments.
  • That would have adversely impacted nearly one-fifth of the total OBC communities.
• We cannot have such Central oversight. It allows states to respond to socio-economic requirements which are specific to a state or region, faster.
• Besides India has a federal structure and to maintain that structure, this amendment was essential.

Source: Indian Express

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