Written By: Sreshta Satpathy

New OBC Act 2021

About the act

The 127th Constitutional Amendment Bill dealing with the return of the power of identification of OBC class to state authorities was cleared and introduced by the Monsoon Session of the Lok Sabha on August 10, 2021. This Bill, which has received universal approval, intends to clarify a few clauses proposed in the 102nd Constitutional Convention. Virendra Kumar, the Minister for Social Justice and Empowerment, introduced the Constitution (127th Amendment) Bill, 2021 in the Lok Sabha.

The 102nd Constitution Amendment Act added three new articles to the Constitution: 342A, 366(26C), and 338B, according to the government’s declaration of aims and reasons for enacting the bill. The National Commission for Backward Groups was founded under Article 338B, while Article 342A dealt with the central list of socially and educationally backward groups (OBCs) and Article 366 (26C) defined the OBCs. On August 20th, the President of India signed the OBC Bill, which was tabled as the 105th Constitutional Amendment Act 2021. As a result, the Bill has been elevated to the status of an Act (OBC Act). The power of identification in the declaration of Socially and Educationally Backward Classes (SEBC) is conferred on the State, as stated in Articles 15 (4), 15 (5), and 16 (4). Individual OBC lists are prepared by the centre and the state in question following these lines.

Despite its political sensitivity, the Bill has received support from major opposition parties, including Congress, because it addresses the needs of the numerically large and hence electorally essential OBCs. Despite its political sensitivity, the Bill has received support from major opposition parties, including Congress, because it addresses the needs of the numerically large and hence electorally essential OBCs.

What is the purpose of the bill?

The question of whether such an Act is essential in today’s environment has numerous dimensions. The OBC Act is said to be required following the Supreme Court Maratha Reservation Judgement, which upheld the 102nd Bill’s validity while also stating that the President shall determine the groups to be included in the OBC list made for separate States, which shall be based on the suggestions and recommendations of the National Commission for Backward Classes (hereinafter, “NCBC”).

The bill is essential because if the state list is repealed, more than 600 OBC communities will lose access to posts and educational institutions, affecting at least one-fifth of the overall OBC population. The need for this modification arose when the Supreme Court affirmed the 102nd Constitutional Amendment Act in the Maratha reservation case. The Supreme Court, on the other hand, stated that the President would decide which groups would be included in the state’s OBC list based on the recommendations of the National Commission for Backward Classes (NCBC).

Issues seen in the Act;

Lack of clarity on the priority list;

The Centre has shifted the burden on the states by passing the bill. There appears to be a restoration of the federal balance, which had been skewed toward the centre, but there is no doubt over which of the two lists, central or state, takes precedence when it comes to SEBC reservation. The Supreme Court in the 1992 Indra Sawhney case (on the issue of reservation in government posts) limited reserve to 50% unless in “exceptional circumstances. “However, MPs, researchers, and OBC organisations have questioned the 50 per cent ceiling’s validity, given that caste data hasn’t been updated since the 1931 census. According to Ashwini Deshpande, an expert on the economics of discrimination and affirmative action, the 50% ceiling is as arbitrary as any other number.

Without a doubt, the population’s makeup and the distribution of disadvantage/advantage among castes will decide the number of reservations. This may be ascertained if a question concerning castes is included in the national census’s socio-economic profile enumeration (caste). Several state administrations, including Bihar, Odisha, and Maharashtra, have urged that caste data be included in the 2021 census. In August 2021, the government notified parliament that caste enumeration from the 2011 Socio-Economic Caste Census had not been made public because “technical flaws have been detected in the enormous quantity of caste information tallied” and “data has become rather obsolete and is not useable.”

Governments have withheld caste data in the past, ostensibly because doing so encourages discrimination. While dominating castes are a minority in terms of numbers, they wield significant control in public spaces. According to sociologist Satish Deshpande, the political notion that they could be considered as a minority is new, but it is a demographic fact. According to him, a caste census will be “the ultimate nail in the coffin” of the “caste as exception” doctrine, which maintains that caste is an exception rather than the norm and has dominated our political vocabulary.

The Lack of Opposition can be a risk;

The OBC Bill, which is set to be enacted in Parliament, has had little to no resistance. The OBC Act has political ramifications because it seeks to restore state authority for the identification of SEBCs and other backward classes, which has been a popular demand among many local political parties, including the BJP’s OBC leaders. A large number of OBC people have formed a ‘vote bank’ for political parties. As a result, both the BJP and the Opposition, the Congress, want to acquire support from such communities and vote banks, especially in the politically volatile and essential state of Uttar Pradesh.

This aspect and dimension of politics drove the Opposition parties to align with the ruling government’s approach, fearing that failure to work with the Treasury benches on this topic would have disastrous ramifications for their reputation among OBC communities. The lack of opposition from the Opposition Parties, on the other hand, poses a greater threat to the constitutional ideals enshrined in the Indian Constitution. In the case of such vital and delicate topics as a reserve, there is an urgent need for opposing contention.

Conclusion

Although the legislature has enacted the OBC Act, it poses a bigger danger to fundamental norms. The process of removing the 50% reserve threshold is against Articles 14 and 16 of the Constitution, which provide that reservation measures should be based on equality. This was already established in the seminal Indra Sawhney v UOI decision. This is one of the few situations when the legislature has attempted to offset an SC ruling by adopting legislation against the decision’s opinion. It remains to be seen how the Supreme Court reacts to such legislation and if it will be considered a breach of constitutional principles or not. States and Union Territories will now have the ability to create their own lists of socially and educationally disadvantaged groups. They will be able to do this without having to consult NCBC.

References

1. States Cannot Add Any Caste To Backward Classes List , available at https://www.ndtv.com/india-news/102-constitutional-amendment-supreme-court-says-states-cannot-add-any-caste-to-backward-classes-list-2429839
2. Parliament passes constitution amendment Bill on OBC listavailable at: https://www.deccanherald.com/national/national-politics/parliament-passes-constitution-amendment-bill-on-obc-list-1018645.html
3. Why the OBC Bill matters available at https://www.indiatoday.in/india-today-insight/story/why-the-obc-bill-matters-1839578-2021-08-11
4. What the OBC bill is, and why opposition parties are rallying behind Modi govt to pass it available athttps://theprint.in/india/what-the-obc-bill-is-and-why-opposition-parties-are-rallying-behind-modi-govt-to-pass-it/712379/

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Keywords

OBC Act, 2021, New Act