127th Constitution Amendment Bill: What it is, why it is needed? [Explained]

Why In News?

The Lok Sabha, on August 10, passed The Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021 after a discussion that lasted nearly six hours.

In India, separate OBC lists are drawn up by the Centre and each state concerned. Articles 15(4), 15(5) and 16(4) expressly conferred power on a state to identify and declare the list of socially and educationally backward classes.

In May 2020, Supreme Court in Maratha Reservation Said "States Can't add any caste in OBC Lists", "Only Central government can make the List of caste/community in OBC Category and States can send proposal through Governor"

"After getting passed from Parliament, the 127th Amendment make way for state to add caste/community according to their requirement and even those castes can be added in OBCs which are not in Central List"

Why is the 127th Constitution Amendment Bill needed?

The amendment was necessitated after the Supreme Court in its Maratha reservation ruling in May upheld the 102nd Constitutional Amendment Act but said the president, based on the recommendations of the National Commission for Backward Classes (NCBC), would determine which communities would be included on the state OBC list. 

The 102nd Constitution Amendment Act of 2018 had inserted Articles 338B and Article 342A (with two clauses) after Article 342. 

• Articles 338B deals with the structure, duties and powers of the National Commission for Backward Classes. 

• Article 342A says that the president, in consultation with the governor, would specify the socially and educationally backward classes.

• It gave constitutional status to the NCBC, and empowered the President to notify the list SEBCs for any state or union territory.

The amendment is necessary to restore the powers of the state governments to maintain a state list of OBCs which was taken away by a Supreme Court interpretation. 

• If the state list gets abolished, nearly 671 OBC communities would lose access to reservations in educational institutions and in appointments. This would adversely impact nearly one-fifth of the total OBC communities.

• The 2021 Bill, however, amends this to provide that the President may notify the list of socially and educationally backward classes only of the central government. Thus the amendment Bill bypasses the SC ruling and restores the powers of the state governments to maintain a state list of OBCs.

Why did the SC intervene?

The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, has had a rollercoaster ride till it was held to be unconstitutional by the Supreme Court in its 5 May judgment. 

• The first challenge to the quota was filed in the Bombay High Court right after the state government passed the legislation.

• 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 December 2018, the Bombay HC refused to put an interim stay on the quota law even as it was hearing the case. 

• Eventually, in its judgment in June 2019, the high court upheld the Maratha quota but asked the state government to reduce it from 16 percent to 12 to 13 percent, which was also what was recommended by the State Backward Class Commission. 

• On the question of breaching of the 50 percent mark, the HC held that the ceiling imposed by the Supreme Court could be exceeded in exceptional circumstances.

However, the Constitution Bench of the apex court sought to differ on that reading.

• "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," the verdict said.

It must be noted that at least three other states — Tamil Nadu, Haryana and Chhattisgarh — have introduced quotas that breach the total 50 percent ceiling while some others, including the likes of Rajasthan, Gujarat, Karnataka and Jharkhand have asked the Supreme Court to hike the quota ceiling.

What will the 127th Constitution Amendment Bill introduce?

The 127th Constitution Amendment Bill will amend clauses 1 and 2 of Article 342A and also introduce a new clause 3. 

• The Bill will also amend Articles 366 (26c) and 338B (9).

The 127th Amendment Bill is designed to clarify that the states can maintain the "state list" of OBCs as was the system prior to the Supreme Court judgment. 

• Articles 366 (26c) defines socially and educationally backward classes.

The "state list" will be completely taken out of the ambit of the president and will be notified by the state Assembly as per the proposed Bill.

Demand for Increasing Reservation Cap Beyond 50%

“We support this bill but our demand is to remove 50% ceiling (in reservation). You should listen to states, make it legal for states to cross the 50 per cent ceiling,” Adhir Ranjan Chowdhury (Opposition Leader in Lok Shabha) said. 

The 50% cap is the result of a landmark 1992 Supreme Court verdict and the top court refused to tinker with it earlier this year.

Social Justice and Empowerment Minister Virendra Kumar on Tuesday 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.

He stated that in the Indra Sawhney case, the court has observed that the limit can be increased beyond 50 per cent only in certain special circumstances. 

Way Forward.

The current bill amends the Constitution to allow states and union territories to prepare their own list of socially and educationally backward classes without breaching the 50% Cap.

It paves the way for State Reservations to various communities in different states, Maratha in Maharashtra, Patel/Patidar in Gujarat, Jaat in Haryana etc.

Source : First Post