Constitution (123rd Amendment) Bill: The Controversy (UPSC CSE Mains GS paper 2)

Context

The Constitution (123rd Amendment) Bill has brought controversy over whether it amounts to encroaching on the domain of the States.

All you need to know about the Constitution (123rd Amendment) Bill

In April, 2017, the Constitution (123rd Amendment) Bill was introduced in the Lok Sabha by The Minister of Social Justice and Empowerment, Mr. Tharwarchand Ghelot.
The Bill was introduced alongside the National Commission for Backward Classes (Repeal) Bill, 2017.
The Constitution (123rd Amendment) Bill, 2017 seeks to grant the National Commission on Backward Classes (NCBC) constitutional status by inserting anew article 338 B in the Constitution
National Commission for Scheduled Castes (NCSC) had the power to look into complaints and welfare measures with regard to Scheduled Castes, backward classes and Anglo-Indians.
The proposed commission will have a chairperson, vice-chairperson and three other members and hear the grievances of socially and educationally backward classes, a function discharged so far by the NCSC
Further, the Bill seeks to establish the NCBC under the Constitution (Article 338B), and provide it the authority to examine complaints and welfare measures regarding socially and educationally backward classes.
The Constitution Amendment Bill states that the President may specify the socially and educationally backward classes in the various states and union territories (Article 342-A). The President may do this in consultation with the Governor of the concerned state. However, a law of Parliament will be required if the list of backward classes is to be amended.

Significance of the Bill

National Commission for Backward Classes with constitutional status at par with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes is expected to safeguard the interests of socially and educationally backward classes more effectively.

Controversy over the Bill

The Constitution (123rd Amendment) 2017, has been largely appreciated but also raises anxieties.
Several opposition parties are of the opinion that if enacted, the bill would undermine federalism, as it may lead to usurping the State government’s power to prepare their own BC list.
A clause in the 123rd Amendment states that the President may by public notification specify the socially and educationally backward classes in relation to a State or a Union Territory. In respect of States, it will be done after consultation with the Governor.
This clause has given rise to anxieties that the Centre is taking over the function of inclusion and exclusion of communities from the ‘Backward Classes’ list.
A reason for the apprehension is that the language of the newly introduced sections, pertaining to specifying Backward Classes, is exactly the same as that used in Articles 341 and 342 in respect of Scheduled Castes and Scheduled Tribes.
A Constitution Bench, in its judgement, in E.V. Chinnaiah vs. Andhra Pradesh case (2004), had directed that the President alone has the power to notify Scheduled Castes/Tribes and when it comes to varying the lists, the State legislatures do not have legislative competence.
Applying the same yardstick to Backward Classes may mean that the President alone may notify the list of BCs for every State, and that it cannot be varied except by a law enacted by Parliament.

Way ahead

The central government has attempted to alleviate these anxieties.
The Center has remarked that the powers of the State would remain unaffected. The list for every State will be prepared only in consultation with the State government.

National Commission for Backward Classes (Repeal) Bill, 2017

Ø The Bill was introduced in the Lok Sabha in April 2017 by The Minister of Minister of Social Justice and Empowerment, Mr. Tharwarchand Ghelot.

Ø The Bill seeks to repeal the National Commission for Backward Classes Act, 1993.

Ø The Bill was introduced alongside the Constitution (123rd Amendment) Bill, 2017 that provides for setting up of the National Commission of Backward Classes under the Constitution.

Ø Rationale for the Bill: The Statements of Objects and Reasons of the repealing Bill clarifies that after the setting up of the National Commission of Backward Classes under the Constitution, the Act will become redundant, and therefore, may be repealed.

Ø The Bill states that the repeal of the Act will not affect:

· any rights, privileges or liabilities acquired under the Act,

· any penalty incurred because of previous violation of the Act, or

Other acts that may have been done under previous operations of the Act.

National Commission for Backward Classes (NCBC)

The NCBC is a body set up under the provisions of the National Commission for Backward Classes Act, 1993.

Background

Via a resolution in 1987, the government had created a Commission for the Scheduled Castes and Scheduled Tribes.
Constitutional status was given to it by passing the Constitution (65th Amendment) Act, 1990
In 1992, the National Commission of Scheduled Castes and Scheduled Tribes (NCSCST) was established
The NCSCST was split into two different commissions viz. NCSC and NCST by inserting Article 338-A via the Constitution (89th Amendment) Act, 2003
In 1992, the Supreme Court, in its judgement in the Indra Sawhney & Ors. Vs. Union of India and Ors case, had directed the Govt. of India, State Governments and Union Territory Administrations to constitute a permanent body in the nature of a Commission or Tribunal to entertain, examine and recommend the inclusion and exclusion of various Backward Classes for the purpose of benefits and protection.
In response to this, the Government passed the National Commission for Backward Classes Act in 1993
Under the provisions of this Act, National Commission for Backward Classes (NCBC) was constituted as a statutory body.

Functions

Currently, NCBC is responsible to look into the inclusion and exclusion of backward classes only.

Under the Constitution Amendment Bill(2017), the duties of the NCBC will include:

investigating and monitoring how safeguards provided to the backward classes under the Constitution and other laws are being implemented,
inquiring into specific complaints regarding violation of rights, and
Advising and making recommendations on socio-economic development of such classes.
The central and state governments will be required to consult with the NCBC on all major policy matters affecting the socially and educationally backward classes.
The NCBC will have the powers of a civil court while investigating or inquiring into any complaints.

Defining Backward Class

The term ‘class’ signifies a form of social stratification. It is defined as a stratum of people who share similar socio-economic status or position.
A class is considered to be backward if its members are economically and educationally less privileged compared to other classes in that society.

Backward Class and the Constitution

The Constitution refers to the term ‘backward classes’ in Articles 15(4), 16(4) and 340(1).
Articles 15(4) and 16(4) empower the State to make special provisions for any socially and educationally backward class of citizens.
Article 340(1) authorises the appointment of a Commission to investigate the conditions of backward classes.

Definitional Issues

The term ‘backward classes’ which had originally been in use during colonial times lacked any clearly defined parameter regarding the inclusion and exclusion of groups described collectively as backward.
The definition of the term “backward class” remained imprecise, even at the time when the Constitution was being debated and drafted.
There were two broad ways in which the term was used in the debates of the Constituent Assembly.
One was an inclusive group of all sections of society that needed preferential treatment. In such a usage the term ‘backward classes’ included the “untouchables”.
In the other usage, the term that was used was ‘Other Backward Classes.’
However, the category ‘backward classes’ was not defined as precisely as the categories of Scheduled Castes and Scheduled Tribes.
It denoted other categories of people who were underprivileged and marginalised.

Other Backward Classes (OBC)

A community is classified as “OBC” if it qualifies as “backward” based on a complex set of social, economic and educational criteria, as specified by the National Commission on Backward Classes (NCBC).

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