Parliament passes 127th Constitution Amendment Bill restoring state's power to make their own OBC list

The Constitution (127th Amendment) Bill, 2021, was passed by the Parliament on August 11, 2021, with Rajya Sabha giving its approval to the bill. The Rajya Sabha approved the bill with the majority of the strength of the house and not less than the two-thirds majority of the members present in the house.

187 members in Rajya Sabha voted in favour of the 127th Constitution Amendment Bill while none against it. The house also neglected the amendments moved by some of the opposition members. 

Lok Sabha on August 10, 2021, had passed the Constitution (127th Amendment) Bill, 2021, unanimously. The bill was passed in the Lower House of Parliament with more than two-third majority of the house strength as well as the members present in the house. 

The legislation aims at restoring the power of the States and the Union Territories to make their own OBC list. During the division of the votes, 385 members in Lok Sabha voted in the favour of the bill, and none were against it.  

The Central Government on August 9, 2021, had introduced a key constitution amendment bill in Lok Sabha that seeks to restore the state’s power to make their own OBC lists.

The Constitution (127th Amendment) Bill, 2021, was introduced by the Social Justice and Empowerment Minister Virendra Kumar.

The Government introduced the bill in the Parliament to clarify some provisions in the 102nd Constitutional Amendment Bill to restore the power of the states to identify the backward classes.

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.

127th Constitution Amendment Bill: Why is it needed?

The latest amendment was necessitated after the Supreme Court in its Maratha reservation ruling in May 2021 upheld the 102nd Constitutional Amendment Act but stated that the President, based on the recommendations of the National Commission for Backward Classes (NCBC), will determine which communities will be included on the state OBC list.

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

Articles 338B deals with the structure, powers, and duties of the National Commission for Backward Classes. Article 342A says that the President, in consultation with the Governor, will specify the educationally and socially backward classes.

The 127th Amendment is required to restore the powers of the State Governments in order to maintain the state list of OBCs which was taken away by the Supreme Court interpretation.

In case the state list is abolished, nearly 671 OBC communities will lose access to the reservations in educational institutions and in appointments which will adversely impact nearly one-fifth of the total OBC communities.

Why did the Supreme Court 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 May judgement.

The first challenge to the quota was filed in Bombay High Court after the legislation was passed by the State Government. Petitioners had argued that the quota violated the SC order in the Indira Sawhney Case in 1992 that ruled that any reservation in any state must not exceed the 50% mark.

The Bombay High Court, in 2018, refused to put an interim stay on the quota, and eventually, on its judgment in 2019, the high court upheld the Maratha Quota but asked the Maharashtra Government to reduce it from 16 to 12 to 13 percent.

On the question of breaching the 50% mark, the High Court stated that the ceiling imposed by the Supreme Court can only exceed in exceptional circumstances.

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 Amendment Bill will amend clauses 1 and 2 of Article 342A and will also introduce a new clause 3. It will also amend Articles 366 (26c) and 338B (9).

The 127th Constitution Amendment Bill is designed to clarify that the State Governments can maintain the ‘state list’ of OBCs as was the system prior to SC judgment. Articles 366 (26c) define the socially and educationally backward classes.

The latest ‘State List’ will be taken out completely of the ambit of the President and will be notified by the State Assembly as per the proposed bill.

Why opposition is supporting 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.