105th Amendment: How was the backward classes policy restored?

Context:

With the passing of the 127th Constitution Amendment Bill, 2021 in Lok Sabha and its receiving assent from the President – the 105th Constitution Amendment will now be restoring to the States their power to identify socially and educationally backward classes is fully operational.

Relevance:

GS-II: Social Justice and Governance (Issues related to Minorities, Government Policies and Interventions, Social Empowerment)

Dimensions of the Article:

1. Constitutional provisions relating to reservation
2. About the Constitutional 127th Amendment Bill, 2021 (105th Amendment)
3. Significance of the 105th Amendment 

Constitutional provisions relating to reservation

• As per the Indian Constitution, Articles 15 (4), 15 (5), and 16 (4) confer power on the governments to declare and identify the list of socially and educationally backward classes.
• As a practice, separate OBC lists are drawn up by the Central Government and each State concerned.

102nd Constitutional Amendment:

• The Amendment established a National Commission for Backward Classes by adding Article 338B to the Constitution.
• The Amendment also added Article 342A, under which the President shall notify a list of Socially and Economically Backward Classes (SEBC) in relation to each State and Union Territory, in consultation with Governors of the respective States. Once this ‘Central List’ is notified, only Parliament could make inclusions or exclusions in the list by law.

Supreme Court Verdict in the Maratha reservation issue

• While holding the Maratha reservation unconstitutional, the Constitution Bench of the Supreme Court also dealt with the issue of the 102nd Constitution Amendment.
• The SC upheld the 102nd Constitutional Amendment Act that inserted Articles 338B and 342 A.
• The constitutional bench had ruled that after the passage of the 102nd Constitution Amendment Act in 2018, the States do not have any power to identify ‘socially and educationally backward’ (SEBC) classes and this power lay in the hands of only the Union government.

About the Constitutional 127th Amendment Bill, 2021 (105th Amendment)

• The Constitutional 105th Amendment will amend clauses 1 and 2 of Article 342A and also introduce a new clause 3. The bill will also amend the Articles 366 (26c) and 338B (9).
• It is designed to clarify that the states can maintain the “state list” of OBCs as was the system before the Supreme Court judgement.
• 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 Indian Constitution, Articles 15 (4), 15 (5), and 16 (4) confer power on the State Government to declare and identify the list of socially and educationally backward classes. As a practice, separate OBC lists are drawn up by the Central Government and each State concerned.

Significance of the 105th Amendment 

• The Bill seeks to restore the power of State governments to identify OBCs that are socially and educationally backward.
• The Union government’s argument has been that the intent of the 102nd amendment was only to create a Central List that would be applied only in the Central government and its institutions. It had nothing to do with the State Lists of backward classes or the State governments’ powers to declare a community backward.
• The bill will benefit around 671 OBC communities because if the state list had been abolished, nearly 671 OBC communities would have lost access to reservations in educational institutions and in appointments.

Calls for removal of 50% cap on reservations:

• During the discussions on the proposed amendment, there were calls from lawmakers across parties to remove the 50% ceiling in reservations.
• In the 1992 Indra Sawhney & Others v. Union of India judgment, the Supreme Court had imposed a ceiling of 50 per cent for reservation quota.
• Notably, at least three Indian States – Haryana, Tamil Nadu, and Chhattisgarh – have introduced quotas that breach the total 50% ceiling. On the other hand, states like Gujarat, Rajasthan, Jharkhand, and Karnataka have asked the Supreme Court to hike the quota ceiling.
• The SC in the Maratha reservation issue had held that extending the 50% limit would be tantamount to establishing a society based on caste rule rather than one founded on equality. It reiterated that reservation under Article 16(4) should not exceed 50% except in extraordinary circumstances.

Why did the opposition support the amendment bill?

• The opposition in Parliament stated that it will extend its support to the 127th Constitution Amendment Bill which gives power to the States to identify the OBCs.
• The amendment bill has political ramifications as restoring powers of State Governments to identify the backward classes has been demanded by many regional parties.
• The ruling BJP and the opposition parties, including Congress plans to get support among OBC communities in poll-bound states, particularly in politically crucial Uttar Pradesh.
• The political angle of the bill has forced the opposition parties to be on the same page as the Ruling party.

-Source: The Hindu