The Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021 passed in Rajya Sabha
Table of contents
Introduction
Main Objective
Reason behind such amendment
- The Constitution (One Hundred and Second Amendment) Act, 2018
- Maratha quota judgement
- Dr Jaishree Laxmanrao Patil v Chief Minister
- Indra Sawhney v Union of India
National Commission for Backward Classes construction
Consultation with the National Commission for Backward Classes
Duty of National Commission for Backward Classes
Conclusion
Introduction
The Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021 (Bill no. 124 of 2021) was introduced in Lok Sabha by the Minister of Social Justice and Empowerment, Dr. Virendra Kumar, on August 9, 2021. The prime objective of the Bill is to amend the Constitution to allow states and union territories to prepare their own list of socially and educationally backward classes. It was passed by Lok Sabha on August 10, 2021 and by Rajya Sabha on August 11, 2021 with 187 votes favouring it and no vote against it.
The Constitution (One Hundred and Second Amendment) Act, 2018 have given the power to president to amend list of socially and educationally backward classes even for states and union territories but this current bill proposes to narrows down the power of the President to 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.
Main Objective
The main objective of The Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021 is to adequately clarify that the State Government and Union territories are empowered to prepare and maintain their own State List/ Union territory List socially and educationally backward classes and with a view to maintain the federal structure of this country, there is a need to amend article 342A and make consequential amendments in articles 338B and 366 of the Constitution of India.
Reason behind such amendment
Three articles have been inserted by The Constitution (One Hundred and Second Amendment) Act, 2018 namely, Article 342A, 366(26C) and 338B in the Constitution of India. Article 342A has dealt with the Central List of the socially and educationally backward classes, article 366 (26C) has defined the socially and educationally backward classes and article 338B has constituted the National Commission for Backward Classes.
The legislative intent at the time of passing of the Constitution (One Hundred and Second Amendment) Act, 2018 was that it deals with the Central List of the socially and educationally backward classes. It recognises the fact that even prior to the declaration of the Central List of socially and educationally backward classes in 1993, many States/Union territories were having their own State List/Union territory List of socially and educationally backward classes. The same was clarified in Parliament that the States and Union territories may continue to have their separate State List/Union territory List of socially and educationally backward classes.
The castes or communities included in such State List or Union List of Backward Classes may differ from the castes or communities included in the Central List of socially and educationally backward classes.
Although since 1993, there always existed separate lists of the Central Government and that of the State Governments and Union territories, a question has arisen after enactment of the Constitution (One Hundred and Second Amendment) Act, 2018 as to whether the said amendments to the Constitution mandated for a single Central List of socially and educationally backward classes specifying the socially and educationally backward classes for each State, thereby taking away the powers of the State to prepare and maintain a separate State List of socially and educationally backward classes.
Maratha quota judgement
In the case of Dr Jaishree Laxmanrao Patil v Chief Minister, hon’ble Supreme Court, constitution bench was considering the validity of Maratha reservation and 102nd Constitution Amendment. A constitutional bench has struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 which has provided reservation to the Martha community in employment and public education; this reservation has exceeded the limit of 50% reservation set by the Supreme Court. In the case of Indra Sawhney v Union of India, nine judges have fixed the ceiling limit of 50% for reservations. In this case the court also noted that to exceed the ceiling limit above 50% without exceptional circumstances will be violative of Article 14 of the Indian Constitution.
The majority judgment in the case of Dr Jaishree Laxmanrao Patil v Chief Minister interprets The Constitution (One Hundred and Second Amendment) Act, 2018 as by introduction of Articles 366 (26C) and 342A through the amendment, the President alone, to the exclusion of all other authorities, is empowered to identify socially and educationally backward classes and include them in a list to be published under Article 342A (1), which shall be deemed to include socially and educationally backward classes in relation to each state and union territory for the purposes of the Constitution. It further held that The states can only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published under Article 342A (1). The use of the term “the Central List” is only to refer to the list prepared and published under Article 342A (1), and no other; it does not imply that the states have any manner of power to publish their list of socially and educationally backward classes.
To further clarify that state and union territories have their own power to make a list for socially and educationally backward classes the Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021 have been proposed.
National Commission for Backward Classes construction
By virtue of Article 338B of the Constitution of India National Commission for Backward Classes have been constructed for the welfare of socially and educationally backward classes. The Commission has the power to regulate its own procedure.
The commission consist of :-
Chairperson
Vice-Chairperson
Three other Members
The conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members shall be determined by the President moreover, they are appointed by the President.
Consultation with the National Commission for Backward Classes
According to Article 338B of the Constitution of India the Union and every State Government shall consult the National Commission for Backward Classes on all major policy matters affecting the socially and educationally backward classes. The Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021 proposes that states and union territories shall be exempted from this requirement for matters related to preparation of their list of socially and educationally backward classes.
Duty of National Commission for Backward Classes
a) To investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law and to evaluate the working of such safeguard.
b) To inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes.
c) To participate and advise on the socio-economic development of the socially and educationally backward classes.
d) To evaluate the progress of their development under the Union and any State.
e) To present to the President, annually report upon the working of those safeguards.
f) To make in such reports the recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards.
g) To discharge such other functions in relation to the protection, welfare and development and advancement of the socially and educationally backward classes.
Conclusion
Prime Minister Narendra Modi tweeted that the passage of the Constitution (127th Amendment) Bill, 2021 in both Houses of Parliament is a landmark moment for our nation. It also reflects the Government’s commitment to ensuring dignity, opportunity and justice to the marginalised sections. The ongoing controversy over whether the state can include, exclude or modify a list of socially and educationally backward classes, castes or communities will be resolved by this The Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021 which will provide a clear clarification. This amendment will allow states and union territories to prepare their own list of socially and educationally backward classes and expand their scope of making laws and policies for welfare and protection of interest of socially and educationally backward classes.
