123 – A March Much Needed?

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Photo Credit: Hindustan Times

The so called weak and backward classes of the society are the linchpins of almost every government scheme/programme led by Prime Minister Modi. Ensuring prosperity and upliftment of all needy persons is the steadfast aim of this Modi led government. Walking the same line, during the recently concluded budget session, Lok Sabha passed the 123rd Constitution Amendment Bill (by insertion of Article 338B) which sought to provide a constitutional status to the OBCs by ensuring their rights through creation of an OBC Commission (N.C.S.E.B.C – National Commission for Socially and Educationally Backward Classes) and dissolving the prevailing National Commission for Backward Classes (N.C.B.C). This is claimed to be an effective move towards fulfilling the agenda of welfare. This bill which seeks to provide a constitutional status to the Commission is also said to weave within itself a large section of the Muslim community (Kahar, Kumhar, Gujjar, Jogi, Mali etc.) to strengthen this yarn of social justice thereby declaring them as constitutionally eligible to benefit themselves from the prevailing welfare manoeuvres of the government.

The Inception and Progression

The Parliamentary Committee’s suggestions and recommendations to amend the Constitution establishing this commission are well accepted. A question was nevertheless posed which demanded a categorical explanation as to why was there a parallel Central and State OBC list in existence, unlike the SC/ST list which is uniform for both states and the Centre? To the dismay of many, the argument asserted was that the 5-year plans have already benefited the backward classes and hence there is no such need of a uniform list. This without a doubt was not a satisfactory answer and took no time to be found erroneous.

Subsequently, the government marched forward in this direction and was successful in formulating a bill which seeks to accord a constitutional status for the OBC Commission. Thaawarchand Gehlot the Social Justice Minister introduced the bill and the same was passed in the Lok Sabha on 10 April 2017, which is also the birth anniversary of Babu Jagjivan Ramji. A constitutional amendment to take effect would require a 2/3rd approval of both houses of Parliament and a subsequent ratification by 50% of the state assemblies. Having been said that, when on April 11 the bill was sent to a Select Committee for the approval in Rajya Sabha, the behavior of the opposition parties especially that of Congress and BSP was adverse, which ultimately stalled this idea, exposing their attitude towards this initiative. [The Indian Express, Rajya Sabha: Opposition stalls bills on OBC panel, traffic laws, 12th April  2017]

Indira Jaising, Senior Advocate at the SC while talking about this step of the government said –making it a constitutional amendment means that it cannot be amended by a simple majority in Parliament. More significantly, the earlier provision says that the President may appoint whereas I am presuming there is no choice here and it will be a permanent commission in place, similar to the SC and ST (Commission)”.  [Livemint, New OBC commission to get constitutional status, 24th March 2017]

The Legal Root

It was in the case of Indra Sawhney v. Union of India (Mandal Commission Judgment of 1992), that the Supreme Court adjudged and held –

“It was not invalid to identify a group by any criteria like occupation, social, educational or economic situations. Social and educationally backward class under Article 340 have to be construed in a limited sense. They do not have the wide sweep as under the fundamental right guaranteed to backward classes in Article 16(4).”

That is to say, if earlier a community was to be incorporated in the state list, it was for them to make a representation before the state government following which, it ought to have been straightforwardly settled whether that group is backward or not. On the off chance that these steps are being complied with, then at that point, the state Backward Classes Commission would make a suggestion to the government of the state. This suggestion was usually binding on the state government on the premise of the above-stated landmark judgment (Indra Sawhney) by the Supreme Court. Juxtaposed, if in the current scheme a community needs to be included in the list, then the representation has to be made to N.C.S.E.B.C (National Commission for Socially and Educationally Backward Classes) at whose exhortation the task would follow up. It would be therefore difficult to find a fault in the decision by the parliament which is always open to public scrutiny.

Changes In The New Avatar

Up until now, the N.C.S.E.B.C was a mere statutory body with meager functions as to advise the government in respect of inclusion/removal of castes and communities from the lists and to hear complaints of over-inclusion or under-inclusion of any backward class in the existing quota. A former member was also of the view:

We did not have powers to hear complaints from OBC members like the SC/ST commissions did, and in that sense, a constitutional authority will ensure it has more power. The government has opted for a new body altogether instead of giving NCBC more powers; more details will emerge once the bill is tabled in Parliament. [Livemint, New OBC commission to get constitutional status, 24th March 2017]

Thus, with the grant of the constitutional status, it will be at par with the National Commission for Scheduled Castes and Scheduled Tribes.

This new commission will comprise of a chairperson, a vice-chairperson, and three other members. The functions of this commission would include protection, development, and welfare of the backward classes and also helping them by the means of the inherent powers under the aegis of Articles 16(4) and 15(4) of the Constitution. The tasks entrusted to the commission as per article 338B (5) does not include an advisory role for the commission. With its avatar, the Constitution could give it more teeth. The Bhartiya Janta Party has further planned to conduct and host a number of conferences across the country to make this a successful spell and to also enlighten the backward classes about their rights and entitlements.

Bird Eye Slant

Interestingly, this initiative by the government got struck at a time when the Jats through their agitation were demanding OBC status for the community. Be that as it may, this decision surprisingly crept up as an aggressive outreach to politically crucial other backward castes amidst the time frame that witnessed a win of BJP in the Uttar Pradesh wherein OBCs assumed a key part amongst the voters. Unfettered by being in a prolonged period of a power position and after various suggestions and reports by Kalelkar Commission (1955) and the Mandal Commission (1980), the Congress did not take any substantial step on this path.

It has been 70 years now since the Independence of India but this is for the first time that any government has taken such a holistic decision aimed at satisfying the needs and interests of the regressive classes. It is, along these lines, that it is being seen as an inferred affirmation of this social arrangement by BJP. This is a satisfaction of the long-pending interest of the government by giving social equity to the OBCs.

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