After an intensive tug of war between the parties, the government saw a rare sight of the meeting of minds between Lok Sabha and Rajya Sabha. Both the houses acknowledged the competency of states to have their list of OBCs for the purpose of reservation in jobs and educational institutions. Introduced by the Ministry of Social Justice and Empowerment, the Constitution (One Hundred and Twenty Seventh Amendment) Act,2021 was passed on August 11, 2021, through division voting in the presence of 187 members.
After the ascent of President, the Bill was enacted as Constitution 105th Amendment 2021 and published in Gazette on 18 August 2021.
BACKGROUND:
At the enactment of the 102nd Constitution Amendment Act, 2018, a National Commission on Backward Classes was established as a constitutional body, which was at par with the National Commission for Scheduled Tribes and National Commission for Scheduled Castes. It was pari passu meaning, it had gained equal footing with the commissions for SC and ST respectively, under article 338 and 338A.
The 102nd Constitutional Amendment Act of 2018 had introduced Article 342A and Article 338B with two additional clauses. Article 338B determines the structure, power, and duties of the National Commission for Backward Classes and the former indicates that the President shall determine the socially and educationally backward classes, after consultation with the governor.
The legislative aim behind the amendment was to determine the central list of the Socially and Educationally Backward Classes (SEBCs). It posed a question whether it necessitated a single Central list of the SEBCs, taking away the rights of the states to determine the socially and educationally backward communities on their own.
Supreme Court, in the case of Jaishri Laxmanrao Patil vs. The Chief Minister and Ors, had struck down 2018 and acknowledged the “states ‘power to makes reservations, in favors of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations and all other matters falling within the ambit of Articles 15 and 16, except identification of SEBCs.”
Amendment was seen imperative after Supreme Court in its decision upheld 102nd Constitutional Amendment but asserted the power to President, to determine, upon the recommendations of the National Commission for Backward Classes (NCBC), the OBC communities to be included the state list.
CHANGES BROUGHT BY AMENDMENT:
The Bill has amended the Constitution by adding provisions to enable the States and Union Territories to curate and maintain their list of backward classes and other following additions:
Nothing in Article 338B (9) shall apply for the purposes of clause (3) of Article 342A.
Under Article 342(1), the expression “socially and educationally backward classes which shall for the purposes of this Constitution” be replaced by “socially and educationally backward classes in the Central List which shall for the purposes of the Central Government”.
It had empowered the state government through the addition of Clause (3) of Article 342A stating that every State or Union Territory, may prepare and maintain a list of socially and educationally backward classes. It may be different from the Central List.
Under Article 366, (26C), socially and educationally backward classes must mean such backward classes as are so deemed under Article 342A for the purposes of the State Government, Union Territory, or Central Government as it seems fit.
The States can now prepare their own list without having to refer to National Commission for Backward Classes (NCBC) and directly report to SEBCs.
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