On 10th August 2021, the Monsoon Session of Lok Sabha cleared and introduced the 127th Constitutional Amendment Bill relating to the restoration of the power of identification of OBC class to the State Authorities. This Bill, which has been unanimously supported, aims at providing clarifications to a few provisions introduced in the 102nd Constitutional Amendment Bill (102nd Bill).
On 20th August, the President of India provided his assent to the OBC Bill which was presented as the 105th Constitutional Amendment Act 2021. The Bill has, thus, gained the status of an Act (OBC Act). It is enshrined in Article 15 (4), 15 (5) as well as 16 (4) that the power of identification in the declaration of Socially and Educationally Backward Classes (SEBC) shall be conferred upon to the State. Upon the lines of which, individual OBC lists are created by the centre along with the State in question.
Legal Aspect of the OBC Act
The OBC Act installs a few changes regarding the reservation power of the State. The changes and amendments are listed below:
It modifies Article 342A (1) & (2) along with the addition of Article 342A (3). It deals with the power of the President regarding identification and notification of a particular caste as SEBC, along with the power to amend the State OBC list on the recommendations of the Governor.
It amends Article 366 (26c) which gives a definition of SEBCs. The definition includes all such backward classes which are deemed backwards as per the provisions of Article 342A of the Constitution.
It aims to amend Article 338 B (9) which states that the Centre and the State Governments must take consultation from NCBC regarding any matter which affects SEBCs.
The Need for The Act
There are multiple prongs as to the question of the need for such an Act during the current times. One of the reasons the OBC Act is said to be required is after the Supreme Court Maratha Reservation Judgement in which the court held the validity of 102nd Bill while also stating that the President shall determine the groups that are to be included in the OBC list made for separate States, which shall be based on the suggestions and recommendations of National Commission for Backward Classes (hereinafter, "NCBC").
The court further held in that judgement that the President will be directed by NCBC established under Article 338B for the purpose of identification of SEBCs as well as that the Commission's advice must be taken in regard by the States for the policies which are structured by them. As per the provisions of Article 338B, if in case, NCBC creates a report on the lines of identification issues, it must be communicated to the State Authorities who are obligated to resolve it. However, the final decision regarding the determination shall be made by the President and the Central Government as per article 342A (1), Article 367 and Section 3 (8) (b) of the General Clauses Act. The authority of the State Government for making reservations towards specific groups or castes, including the magnitude, type, nature of benefits and so on, which fall within the scope of Article 15 and 16, except for the identification of SEBCs, shall remain unaffected.
The 102nd Bill added Articles 338B and 342A, which dealt with outlining the structure, responsibilities and authority of NCBC and the power of the President to identify SEBCs on the recommendations of Governors, respectively. The strict requirement for the State Government's powers regarding the maintenance of the State list of OBC groups to be regained, which had been taken away by the Supreme Court (hereinafter, "SC") interpretation is why the OBC Act was needed.
Rationale behind the Supreme Court Intervention
The SC intervened and declared the Maharashtra State Reservation for SEBC Act, 2018 (hereinafter, "Reservation Act") as constitutionally invalid in May 2021, which was initially filed with Bombay High Court immediately after the passing of the legislation by the Maharashtra Government. It was claimed by the petitioners that the Reservation Act and the quota provided in it are in contravention to the SC judgement of Indira Sawhney of 1992, which clearly stated that reservations in any state must never exceed the cap of 50%.
The Bombay High Court did not grant an interim stay on the Reservation Act and eventually upheld it, while also directing the State Government to decrease the quota from 16% to 12-13% which was suggested by the State Backward Class Commission. Regarding the breach of 50% cap for reservation, the Court ruled that such limits can be surpassed in exceptional cases.
However, the constitutional bench of SC overruled the judgement of the High Court and ruled that no exceptional cases can be established for granting a separate reservation to the Maratha Community by way of surpassing the 50% reservation cap. The court held that the Reservation Act is in contravention to the principle of equality as per the provisions of Article 16 and is in violation of both Articles 14 and 16, thus rendering the Reservation Act as ultra vires.
Furthermore, it has been also seen that States like Tamil Nadu, Haryana and Chhattisgarh have already implemented such quotas that exceed the 50% cap limit and other States like Rajasthan, Jharkhand, Karnataka and Gujarat have petitioned to the SC for raising the ceiling of reservation.
The Absence of Opposition: A Threat
There has been little to no opposition at all regarding the OBC Bill to be passed in the Parliament. The OBC Act has political implications attached to it since it aims at restoration of powers to the State regarding the identification of SEBCs and other backward classes which has been in the light of popular demand in many local political parties, including the OBC leaders of BJP. The vast number of OBC individuals have created a 'vote-bank' for the political parties. Hence, the BJP as well as the Opposition, i.e., Congress wishes to gain support from such communities and the vote banks, particularly in the politically unstable and crucial State of Uttar Pradesh.
This aspect and dimension of politics compelled the Opposition parties to align with the direction of the Ruling Government since any failure to cooperate with the treasury benches regarding this issue might result in dire consequences on their reputation when it comes to OBC communities. This absence of opposition from the Opposition Parties, however, is a bigger threat to the constitutional values as envisaged in the Constitution of India. There is a dire need of contention from the opposition, in case of such crucial and delicate matters, such as reservation.
The OBC Act has been passed by the legislature, however, it poses a greater threat to constitutional values. The process of removal of the 50% cap in reservation goes against the principle of equality under reservation policies as enshrined in Articles 14 and 16 of the Constitution. This has already been established in the landmark judgement of Indra Sawhney v UOI.
This is one of the times when the legislature has tried to mitigate an SC judgement by way of passing a legislature going against the viewpoint of such a decision. It is yet for us to see how the SC reacts to such legislation and will it consider it as a violation of the Constitutional provisions or not.