A wrong & two amendments: Need to protect Ambedkar's spirit

The 102nd amendment gave constitutional status to the National Commission for Backward Communities (NCBC) which became the primary institution for dealing with matters concerning OBCs. The 102nd Constitution Amendment Act of 2018 also introduced Articles 338B and 342A.

By M Sridhar  Published on  6 Dec 2022 3:38 AM GMT
A wrong & two amendments: Need to protect Ambedkars spirit

Dr. B R Ambedkar dreamt to provide affirmative support to genuine backward classes. Political parties simply target winning votes and seats. On August 18, 2021, the President gave his assent to the 105th Constitutional Amendment Act. The States are primarily responsible for the welfare of the residents of their states. The 105th Constitution Amendment that has been notified on August 19, 2021, and aims at giving states back their authority to specify socially and educationally backward classes (OBSs). It was deemed to be in force from 15 August 2021.

The 102nd amendment gave constitutional status to the National Commission for Backward Communities (NCBC) which became the primary institution for dealing with matters concerning OBCs. The 102nd Constitution Amendment Act of 2018 also introduced Articles 338B and 342A.

Article 342A says: "the president, in consultation with the governor, would identify the socially and educationally backward classes". It states that it is subject to the Parliament to include or exclude a community to grant reservation benefits from the Central List of socially and educationally backward classes. Though deprived the states of the power to declare a class as backward, the SC held that 102nd Amendment was held constitutionally valid.

This means another centralization of power and deprivation of states of their power has been validated. In all other cases, the centre did not face any repercussions, but in this case, the Centre felt a strange predicament to tackle the demand of certain castes to get BC status, and it cannot blame states now.

Backward to forward. And again, back to backwardness. Agitation in streets demanding 'backward' status. Political executive drafts a law to grant quota. It will be surely challenged in Constitutional Courts, which are more or less sure to strike down the law for its 'inherent' defects. This became a vicious circle in Indian politics. The backward people remain backward.

There are two Constitutional Amendments in recent times, and in between them, there are a couple of litigations, agitations, and goes on.

Whether lack of drafting diligence the cause of the double amendments to the Constitution?

The issue that has arisen from an amendment to the Constitution is interesting. Who should decide the backwardness of some classes of people? Centre alone, or states only? This question was answered by two Constitutional Amendments and two Supreme Court judgments. We complicate everything. At the commencement of the Constitution, a National SC & ST Commission was there to determine and schedule certain casts and tribes for affirmative action. Later, it was split into two Commissions- one for SCs and another for STs. Article 340 empowers the President to examine the condition of social and backward classes. In Indra Sawhney's case, Supreme Court directed the Government of India and states to establish Commissions to determine the backwardness. The Constitution has recognized only social and educationally backward classes SEBC only and not economic backwardness. For that a National Commission for Backward Classes, NCBC was established by NCBC Act, 1992.

Article 338B(5) explained the duties of this Commission, such as to investigate matters relating to SEBC, to inquire into specific complaints of breaching rights and safeguards of SEBCs, report and recommend the measures for their development and protection, etc. It can become a civil court to inquire into complaints by the SEBCs.

The centre wanted to give Constitutional status to this NCBC along with similar powers. Brought 123rd Constitutional Amendment Bill, 2017. After Parliament passed it, it became the 102nd Amendment, which has accorded constitutional status under Article 328B of our Constitution. The new Article 342A says that the President shall notify a list of SEBCs about each State and Union Territory in consultation with the Governors. The act called it the 'Central List', and once it is notified, only Parliament alone could make changes to it. But this Amendment is worded in such a manner that it means that states' have no power to declare new castes as BCs. States and UTs can only recommend.

In the Union list of the (Other Backward Castes) OBCs the number of Backward Castes (BC) has increased to 5,013 and above as per National Commission for Backward Classes. This number does not include the figures for most of the Union Territories. The criterion for being recognized as OBC was fixed in October 2015, by the National Commission for Backward Classes. A person belonging to OBC with an annual family income of up to ₹15 lakhs should be considered as a minimum ceiling for recognizing that person as OBC. The NCBC suggested sub-classification of OBCs into 'backward', 'more backward', and 'extremely backward' blocs and dividing the 27% quota amongst them in proportion to their population, to ensure that stronger OBCs do not corner the quota benefits.

In every state, persons from several castes started seeking the status of the Backward class through serious agitations. Marathas were demanding to be categorized as BCs. Justice Gaikwad committee concluded that the Maratha community is socially, educationally, and economically backward class.

Through Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act.

Maharashtra Government passed a Bill granting 16 percent reservation in public employment and education opportunities, in 2017. This increased the quota to 68 percent, beyond the 50 percent cap mandated by Supreme Court in Indra Sawhney case. On a challenge, the Bombay High Court upheld the law. The litigation reached the Supreme Court, which tested the constitutionality of the law as per Article 338B and 342A, the provisions added by the 102nd Amendment. The SC in JaishriLaxmanrao Patil v Union of India in May 2021, found that the Maharashtra state had no power to classify Marathas as BCs, as the 102nd Amendment, Constitution has given that power exclusively to the Centre. The SC held Maharashtra SEBC Act unconstitutional.

With this clarification by the judgment, the political parties realized that the states were deprived of their sovereign powers to determine the backwardness of the groups of people in their territory. Even the then-ruling BJP in Maharashtra realized that the 102nd Amendment deprived the states of their power. Those who drafted the 102nd Amendment have simply copied the provisions from SC-ST law, which is the source of this trouble. Justice Ravindra Bhat explained the majority view: "Parliament, through the 102nd Amendment intended that the existing legal regime for identification of communities as SCs and STs and for their inclusion in the list of SCs and STs under Articles 341 and 342, which had hitherto existed, ought to be replicated about the identification of SEBCs"

This necessitated another amendment to the Constitution. The 105th Amendment Act was passed unanimously by all the 385 MPs present and voting. There was not a single opposition. This 105th Amendment added clause (3) to Article 342A to clarify that states and union territories will have the power to identify and specify SEBCs for their purposes and that such a list may differ from the Central list. After the insertion of Articles 366(26C) and 338B (9), states now will be able to directly notify OBC and SEBCs without having to refer to the NCBC, and the "state list" will be taken out of the domain of the President and will be notified by the Assembly. With this, the earlier requirement that the National Backward Classes Commission should be consulted on policy matters will not apply to the State lists of SEBCs. It specifies that the list of SEBCs notified by the President shall be only for the Central government alone and that the 'Central List' means only the list "prepared and maintained by and for the Central Government". Further, it has clarified that every State or Union Territory may, by law, prepare and maintain for its purposes a list of SEBCs and this may be different from the Central List.

In recent times the centre pioneered several legislations, which truncated the powers of states and centralized the power in the centre, despite continuous criticism against it. This is the only occasion where the centre agreed with the demand of the opposition and its state units to restore the power of states to determine the backward classes. However, this amendment does not deal with the '50 percent' cap on quotas, which continues to be a legal threat to political grants of additional quotas to new categories. The parties grant quotas to the new groups, win their votes, and those laws reach the courts, where they get struck down.

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