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Explained: How New Bill Will Restore States’ Powers to Make Their OBC Lists

The Opposition is also using the bill to demand the government to remove the 50 percent cap on reservations.

Updated
Explainers
4 min read
<div class="paragraphs"><p>The Constitution (127th Amendment) Bill introduced in the Lok Sabha by Union Minister Dr Virendra Kumar on Monday, 9 August, is currently being discussed in Parliament.</p></div>
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The Constitution (127th Amendment) Bill on OBC list was passed in the Lok Sabha after discussion, with 385 members voting in support and no member opposing it, on Tuesday, 10 August.

The Bill was introduced in the Lok Sabha by Union Minister of Social Justice and Empowerment Dr Virendra Kumar on Monday.

The amendment will restore the powers of state governments to notify their own lists for Socially and Educationally Backward Classes (SEBCs).

After weeks of logjam in Parliament, 15 Opposition parties on Monday decided to support the Constitution (127th Amendment) Bill, at a meeting at the office of Mallikarjun Kharge, the Leader of Opposition in the Rajya Sabha.

Congress MP Adhir Ranjan Chowdhury, speaking in the Lok Sabha, said that the Opposition will unanimously support the Bill, but demanded that the 50 percent cap on reservations also be relaxed in the backdrop of the move, which otherwise, can only be exceeded in exceptional circumstances.

What is the Constitution (127th Amendment) Bill? Here’s all you need to know.

Explained: How New Bill Will Restore States’ Powers to Make Their OBC Lists

  1. 1. Why is the Constitution (127th Amendment) Bill Needed?

    The bill is required to get around the Supreme Court verdict of 5 May 2021, which had ruled that only the Centre had the power to draw up the OBC list, as per the Constitution (102nd Amendment) Act enacted in 2018 by Parliament.

    The Constitution (102nd Amendment) Act had granted constitutional status to the National Commission for Backward Castes (NCBC).

    It further inserted:

    • Article 338B, which deals with the structure, duties and powers of the NCBC

    • Article 342A, which deals with the powers of the President to notify a particular caste as an SEBC and the power of Parliament to change the list.

    Meanwhile, Article 366 (26C) defines SEBCs.

    However, the Supreme Court’s verdict in the Maratha reservation case held that the authority to determine Socially and Educationally Backward Classes (SEBCs) lies only with the Centre and the President.

    This led to the opposition protesting against the Centre for taking away its powers. However, the Centre had argued that the central law – Constitution (102nd Amendment) Act – on drawing up the OBC list was only for the purposes of the central government and had not intended to take away the rights of the states and the Union territories.

    Now, the Constitution (127th Amendment) Bill will clarify provisions in the Constitution (102nd Amendment) Bill and restore the power of the states to identify the Backward Classes and make their own OBC lists.

    The bill was cleared by the Union Cabinet on 4 August.

    Expand
  2. 2. How the Maratha Reservation Issue Played a Catalyst

    In June 2017, the Maharashtra government set up an 11-member committee headed by Justice (retd) NG Gaikwad that found the Maratha community to be a socially, educationally, and economically backward class.

    The committee classified Marathas under an independent category called Socially and Educationally Backward Class (SEBC).

    The bill granting reservation for the community was passed on 30 November 2017. With 16 percent of government jobs and positions in educational institutions now earmarked for Marathas, reservation in Maharashtra stood at a total of 68 percent. However, the then BJP government’s decision didn't go unchallenged.

    Jishri Patil, an advocate, immediately filed a plea in the Bombay High Court opposing the government’s decision, on the grounds that it violated the Supreme Court order that capped reservations across all states at a maximum of 50 percent.

    Later in 2019, the Bombay High Court upheld the law, but quashed the 16 percent quota, saying the quota for Marathas should not exceed 12 percent in employment and 13 percent in admissions to government-run educational institutes.

    The Supreme Court on 9 September 2020, in an interim order, had said that the Maratha quota would not be applicable to jobs and admissions that year.

    Further, the apex court on 5 May 2021, struck down the Maharashtra State Reservation for SEBC Act of 2018, which granted reservation to the Maratha community in education as well as jobs.

    The court had said, breaching the 50 percent ceiling in reservation, unless there are exceptional circumstances, violates Article 14 of the Constitution, as it upheld the apex court judgment in the Indra Sawhney case of 1992.

    However, even if the amendment bill as proposed is passed, the OBC-reservation will still have to undergo legal scrutiny of the 50 percent cap on caste-based reservation.

    So, though Maharashtra will get the authority to determine Socially and Backward Classes (SEBCs), quota of reservations will still be capped at 50 percent, unless exceptional circumstances for the hike can be proved.

    Expand
  3. 3. How Will the Constitution (127th Amendment) Bill Be Passed?

    An amendment of the Constitution can be initiated only by the introduction of a bill in either House of Parliament.

    Each House must pass the bill 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.

    Expand
  4. 4. What Powers Does the Amendment Give the States?

    There will be a consequential amendment in Articles 366(26C) and 338B (9), after which states 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, as per the proposed bill.

    A ministry official was quoted as saying, “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”, The Indian Express reported.

    The official added, nearly 671 OBC communities would have lost access to reservation in educational institutions and in appointments if the state list was abolished. Moreover, nearly one-fifth of the total OBC communities would have been adversely impacted by this.

    Further, an official said, “Besides India has a federal structure and to maintain that structure, this amendment was essential. We cannot have such central oversight. It allows states to respond to socio-economic requirements which are specific to a state or region, faster,” the daily added.

    (With inputs from The Indian Express, LiveMint, and Firstpost)

    (At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

    Expand

Why is the Constitution (127th Amendment) Bill Needed?

The bill is required to get around the Supreme Court verdict of 5 May 2021, which had ruled that only the Centre had the power to draw up the OBC list, as per the Constitution (102nd Amendment) Act enacted in 2018 by Parliament.

The Constitution (102nd Amendment) Act had granted constitutional status to the National Commission for Backward Castes (NCBC).

It further inserted:

  • Article 338B, which deals with the structure, duties and powers of the NCBC

  • Article 342A, which deals with the powers of the President to notify a particular caste as an SEBC and the power of Parliament to change the list.

Meanwhile, Article 366 (26C) defines SEBCs.

However, the Supreme Court’s verdict in the Maratha reservation case held that the authority to determine Socially and Educationally Backward Classes (SEBCs) lies only with the Centre and the President.

This led to the opposition protesting against the Centre for taking away its powers. However, the Centre had argued that the central law – Constitution (102nd Amendment) Act – on drawing up the OBC list was only for the purposes of the central government and had not intended to take away the rights of the states and the Union territories.

Now, the Constitution (127th Amendment) Bill will clarify provisions in the Constitution (102nd Amendment) Bill and restore the power of the states to identify the Backward Classes and make their own OBC lists.

The bill was cleared by the Union Cabinet on 4 August.

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How the Maratha Reservation Issue Played a Catalyst

In June 2017, the Maharashtra government set up an 11-member committee headed by Justice (retd) NG Gaikwad that found the Maratha community to be a socially, educationally, and economically backward class.

The committee classified Marathas under an independent category called Socially and Educationally Backward Class (SEBC).

The bill granting reservation for the community was passed on 30 November 2017. With 16 percent of government jobs and positions in educational institutions now earmarked for Marathas, reservation in Maharashtra stood at a total of 68 percent. However, the then BJP government’s decision didn't go unchallenged.

Jishri Patil, an advocate, immediately filed a plea in the Bombay High Court opposing the government’s decision, on the grounds that it violated the Supreme Court order that capped reservations across all states at a maximum of 50 percent.

Later in 2019, the Bombay High Court upheld the law, but quashed the 16 percent quota, saying the quota for Marathas should not exceed 12 percent in employment and 13 percent in admissions to government-run educational institutes.

The Supreme Court on 9 September 2020, in an interim order, had said that the Maratha quota would not be applicable to jobs and admissions that year.

Further, the apex court on 5 May 2021, struck down the Maharashtra State Reservation for SEBC Act of 2018, which granted reservation to the Maratha community in education as well as jobs.

The court had said, breaching the 50 percent ceiling in reservation, unless there are exceptional circumstances, violates Article 14 of the Constitution, as it upheld the apex court judgment in the Indra Sawhney case of 1992.

However, even if the amendment bill as proposed is passed, the OBC-reservation will still have to undergo legal scrutiny of the 50 percent cap on caste-based reservation.

So, though Maharashtra will get the authority to determine Socially and Backward Classes (SEBCs), quota of reservations will still be capped at 50 percent, unless exceptional circumstances for the hike can be proved.

How Will the Constitution (127th Amendment) Bill Be Passed?

An amendment of the Constitution can be initiated only by the introduction of a bill in either House of Parliament.

Each House must pass the bill 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.

ADVERTISEMENT

What Powers Does the Amendment Give the States?

There will be a consequential amendment in Articles 366(26C) and 338B (9), after which states 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, as per the proposed bill.

A ministry official was quoted as saying, “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”, The Indian Express reported.

The official added, nearly 671 OBC communities would have lost access to reservation in educational institutions and in appointments if the state list was abolished. Moreover, nearly one-fifth of the total OBC communities would have been adversely impacted by this.

Further, an official said, “Besides India has a federal structure and to maintain that structure, this amendment was essential. We cannot have such central oversight. It allows states to respond to socio-economic requirements which are specific to a state or region, faster,” the daily added.

(With inputs from The Indian Express, LiveMint, and Firstpost)

(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

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