The OBC Bill 2021: Why it Matters?

Published : Aug 17, 2021 04:57 pm | By: M D Sridharan

The main objective of the OBC Bill 2021 is to allow the states and Union territories to prepare and maintain their own lists of SEBC.

On August, 10, 2021, Lok Sabha passed a key bill, the Constitution Amendment Bill, which restores the power of states to make their own OBC lists. The constitutional amendment bill, which requires a special majority for passage in both Houses of Parliament, was passed smoothly with the Opposition parties backing the legislation.

It must be noted that prior to the passing of the OBC bill on August, 10, 2021, the monsoon session of the parliament which commenced on July, 19, 2021 witnessed routine disruptions by opposition members in both houses over the Pegasus snooping scandal.  Leave alone the possible debates on several crucial subjects such as Covid-19, the disruptions of the Opposition parties are so severe that not even the Prime Minister was allowed to introduce his new Cabinet Ministers to the house. Finally the monsoon session of  Parliament ended two days ahead of schedule on August, 11, 2021, with both the Lok Sabha and Rajya Sabha getting adjourned sine die.

But, the Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021, was passed with 385 members voting in support and no member opposing it. Considering the stormy situation that prevailed through the entire monsoon session of the parliament, the fact that the politically sensitive bill garnered huge support from the Opposition parties speaks about the importance of the bill as it deals with the interests of the OBCs who constitute a substantial percentage of the overall population of India. For the first time since the Monsoon session of Parliament which began on July 19, Lok Sabha witnessed a debate in an orderly manner as the Opposition put on hold its unapologetic protests over the Pegasus snooping allegations.

Moving the bill for consideration and passage, Social Justice and Empowerment Minister Virendra Kumar described the bill as a historic legislation as 671 castes in the country would benefit from it. The bill was passed as the 105th Constitution Amendment bill after being renumbered. But, though the Opposition parties backed the legislation, many parties demanded the removal of the 50 per cent cap on reservation and also called for a caste-based census. However, Virendra Kumar, Minister for Social Justice and Empowerment, said there is a need for careful examination of the demand made by several Lok Sabha members for increasing the cap of reservation beyond 50 per cent as constitutional issues are involved.

Why the OBC Bill 2021 matters

It all started in November, 2018, with Maharashtra government which reserved 16 % of seats for Marathas in jobs and educational institutions under the Maharashtra State Reservation for socially and Educationally Backward Classes (SEBC) Act, 2018.  The constitutional validity of the Act was challenged before the Bombay High Court and the 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 June 2019, the Bombay High Court upheld the Maratha quota but asked the state government to reduce it from 16 percent to 12 to 13 percent and also held that the ceiling imposed by the Supreme Court could be exceeded in exceptional circumstances.

However, the Constitution Bench of the apex court scrapped the Maratha quota. The Supreme Court said, “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".

While scrapping a separate quota for the Maratha community in Maharashtra, the Supreme Court had ruled that after a 2018 amendment in the Constitution, only the central government could notify SEBCs and not the states. With a 3:2 majority, the five judge bench of the Supreme Court said that the amendment, which also led to the setting up of National Commission for Backward Classes (NCBC), took away states’ power to identify socially and educationally backward classes under their territory to grant quota in jobs and admissions to educational institutions.

While the five –judge bench unanimously struck down the law, there was a split verdict on the question of the interpretation of articles 338B and 342A, inserted by Constitution (102nd Amendment) Act 2018.  The 102nd Constitution Amendment Act of 2018 inserted articles 338B, which deals with the structure, duties and powers of the NCBC and 342A that deals with the powers of the president to notify a particular caste as SEBCs and the power of Parliament to change the list. Article 366 (26C) defines SEBCs.

The Supreme Court held that after the introduction of articles 338B and 342A to the Constitution, “The final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is firstly with the President, and thereafter, in case of modification or exclusion from the lists initially published, with the Parliament”.  It concluded that only the president, based on the recommendations of the NCBC, would determine which communities would be included on the state OBC list.

The interpretation of the 102nd constitutional amendment constrained state governments in identifying backward classes and providing them with reservation benefits. According to the Constitution, Articles 15(4), 15(5) and 16(4) confer power on a state to identify and declare the list of SEBCs. As a matter of practice, separate OBC lists are drawn up by the Centre and each state concerned.

Objective of the OBC Bill 2021

The objective of the Constitution (127th Amendment) Bill, 2021, is to "adequately clarify that the states and Union territories are empowered to prepare and maintain their own lists of SEBCs”, said Virendra Kumar. He also added that there is a need to amend Article 342A and make consequential amendments in articles 338B and 366 in order to preserve India's federal structure,

The government brought in the Constitutional amendment bill after the Supreme Court dismissed its plea seeking a review of its May 5 majority verdict that held that the 102nd Constitution amendment took away the states' power to notify SEBCs for the grant of quota in jobs and admissions. However, the centre maintained that the 102nd amendment is only for the central list and the states are free to have their lists. In response to the Supreme Court interpretation of the 102nd amendment, the Centre filed a review petition, which was dismissed by the top court.

To nullify Supreme Court’s order, the Modi government introduced the 127th Constitution Amendment Bill. The new amendment restores the powers of the states to maintain the “state list” of OBCs as was the system prior to the Supreme Court judgment. The “state list” will be taken out of the ambit of the president and will be notified by the state assembly. The National Commission for Backward Classes (NCBC) will retain the powers to look at complaints about the implementation of various schemes that are meant for OBCs.

The Impact of the OBC Bill 2021           

It has been a long standing demand by many political parties and many OBC leaders of several regional parties to restore the powers of the states to identify backward classes. Undoubtedly the new OBC Bill has political ramifications as almost all political parties both national and regional are aware how crucial it is to get the support of OBCs for its own existence. Indeed the political calculations have compelled the ruling BJP as well as the Opposition parties to come together in this cause. The fact remains that any opposition to this new bill will produce a disastrous effect on the reputation of a political party as no political party could afford to upset the OBC communities who form a major chunk of their vote banks. So, all political parties decided to be on the same page with the government.

On the other hand, if the state lists got abolished, around 671 OBC communities would have lost access to reservations in educational institutions and jobs, adversely impacting nearly one-fifth of the total OBC communities. Union government has recently accepted a longstanding demand to introduce 27 per cent reservation for OBCs in medical and dental courses. Also, let us not forget that the Union cabinet has been reconstituted in July,2021, with a significant OBC representation.

While the Mandal Commission estimated the share of OBCs in India’s population to be 52 per cent, the fact remains that there has never been an official count of SEBCs in India. Besides, while the Opposition parties are demanding   a caste-based census, the ruling BJP has been facing heat over its decision to not conduct caste-wise enumeration in the 2021 Census. But the government fears that if there is any change in the percentage of the OBCs in total population both if it  increases or decreases, it would call for a restructuring of the reservation quota and the process may have huge electoral impact. No government would want to get in to that process and put itself in to position of discomfiture. It is better to maintain the status quo. Overall the new Bill seeks to fulfil the basic aim of providing social, economic and political justice on the basis of equality for its people.

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