The Constitution (one hundred and twenty-third amendment) Bill, 2017, is in the final stages of being passed by Parliament. Lok Sabha passed the bill with an overwhelming majority on 10 April, but due to reservations raised by some Rajya Sabha members, it was sent to a select committee. The committee submitted its report on 19 July, in which it recommended that the bill be passed without any amendments. The bill is listed for consideration and passing in the ongoing Monsoon Session of Parliament.
The bill seeks to create a new body tentatively named the National Commission For Socially and Educationally Backward Classes (NCSEBC). Another bill is being tabled to dissolve the National Commission of Backward Classes (NCBC).
If one were to take the Centre's arguments at face value, the bill will serve a two-fold purpose. Firstly, it will replace the NCBC, which is a statutory body, with the NCEBC, which will be a constitutional one. And secondly, it will also strengthen the NCSEBC and give it powers at par with the National Commission for Scheduled Castes (NCSC) and the National Commission for Scheduled Tribes (NCST).
However, it's generally not wise to take the ruling party's intentions at face value, especially when the process involves amending the Constitution. It's better to ignore platitudinal statements, where the government extols its own generous intentions of making the OBC commission more powerful, and instead dive deeper to investigate if it actually is the case.
Proponents of the bill point towards Clause 8 of the bill, which gives all the powers of a civil court to the proposed commission so that it can take legal action in cases which involve exploitation of members of castes it represents. They are justified in doing so. However, they are wrong to project it as something new. Even some critics seem to have lapped up this argument that the current OBC commission doesn't have this right. This is clearly not true. The NCBC Act, 1993, in Clause 10 under Chapter III, had provided the same powers of a civil court to the NCBC.
Under the proposed Constitutional Amendment Bill, removal of the commission's members has also been made easier. Sub-clause (2) of Clause 3 of the bill provides that "conditions of service of tenure of the offices of chairperson, vice-chairperson and members so appointed shall be such as the president may by rule determine".
In the NCBC Act, 1993, the service term of every member of the commission was set for three years unless he "becomes an undischarged insolvent; is convicted and sentenced to imprisonment for an offence which, in the opinion of the central government, involves moral turpitude; becomes of unsound mind and stands so declared by a competent court; refuses to act or becomes incapable of acting; is, without obtaining leave of absence from the commission, absent from three consecutive meetings of the commission; or has, in the opinion of the central government, so abused the position of chairperson or member as to render that person's continuance in office detrimental to the interests of backward classes or the public interest".
The bar was set extremely high for removal of a member of the commission. No such conditions have been mentioned in the new bill. Additionally, no person could be removed from the NCBC until that person had been given an opportunity of being heard. Now the service conditions "shall be such as the president may, by rule determine".
Apart from these obvious lacunae, what real power will the new commission have? It doesn't have any.
According to the 1993 act, the main function of NCBC was to examine requests for inclusion of any class of citizens as a backward class in the lists, and to hear complaints of over-inclusion or under-inclusion of any backward class in such lists, and to tender such advice to the central government as it deems appropriate. The act made such an advice of the commission "to be ordinarily binding" upon the Centre. Such advice, however, mostly fell on deaf ears, especially if they were contrary to the interests of the governments in power. For instance, the UPA government hurriedly added Jats in the central OBC list a day before the 2014 general election code of conduct came into force. This was done despite repeated protests from the NCBC. However, it was the NCBC that had the last laugh, when judiciary used the commission's objections to cancel the Jats' inclusion in the central OBC list and Haryana's reserved list.
Under the new bill, standing up to the government's interests will become tougher, as members will serve and be fired at the pleasure of the president, and by extension, the government. And this is not the only reason why the new body will be toothless. It has absolutely no power in deciding whether a caste should be included or excluded from the central or state lists.
Clause 4 of the bill seeks to insert a new article 342A after article 342 of the Constitution, which will add two sub-clauses: (1) The president may with respect to any state or Union territory, and where it is a state, after consultation with the governor thereof, by public notification, specify the socially and educationally backward classes, which shall for the purposes of this Constitution, be deemed to be socially and educationally backward classes in relation to that state or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the central list of socially and educationally backward classes specified in a notification issued under Clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
Put simply, the president (hence the central government) can specify a caste to be socially and educationally backward in a state's list or a Union territory's list. This can be done with a simple public notification. The president will have to consult the governor, but his advice will not be binding.
As far as the central OBC list is concerned, the decision will again rest with Parliament. However, sub-clause 2 cleverly adds the words "but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification", which means castes which are already included in the list can't be excluded by subsequent notifications.
The government has also usurped all the states' powers to amend their OBC lists and rested that power in itself through the president. Moreover, it has given up its power to amend the central OBC list and transferred it to Parliament.
This is a cunning political move. Now, if it wishes, the Centre can include castes such as Maratha, Patel and Jats in the Maharashtra, Gujarat and Haryana OBC lists respectively without bothering with the NCBC's opinion. The courts won't be able to cancel the politically motivated inclusions as they do now, because the Centre's move would be perfectly constitutional. Additionally, it will become harder for the Opposition to instigate strong communities against the party in power for reservation demands, as they too would have skin in the game given that the responsibility to provide quota to a caste will be jointly of the Parliament.
If the Centre manages to pass this bill through Rajya Sabha, it will be killing many politically inconvenient birds with one stone. Mutinees by the Marathas, Jats and Patels that have cast a dark shadow over the BJP's prospects in electorally crucial states may become a thing of past.
Does the key to defusing India's growing social crisis and elevating BJP's electoral prospects lie in weakening an institution which was not very effective to begin with? It sure seems so. However, those who wanted genuine reforms in the reservation system, such as a periodical audit of economic and social status of castes, and the inclusion and exclusion based on such analysis will surely be disappointed.
More disappointed will be those who wanted mere release of data comparing various castes on key social, education and economic indicators. Until then, we will have to get by with jugaad like the 123rd Constitutional Amendment Bill.
Updated Date: Jul 28, 2017 11:44 AM