Constitution 127th amendment bill

Introduction

The Constitution of India has granted the right to equality to all residents. All are equivalent under the steady gaze of the law and there can be no separation based on religion, race, sexual orientation, and so forth. The closest thing to the word or idea of “equality” in the Constitution is found in the Fourteenth Amendment.

Article 14 of the constitution ensures that all individuals will be equally protected and secured by the laws of the country. Equality isn’t just a crucial right under Article 14 yet in addition an objective revered in the preamble and a piece of the essential structure of the constitution. The idea of equality is that every individual has an equal opportunity in different sectors to enhance growth and prosperity and for both personal and social welfare.

It also means that nobody ought to have less fortunate life chances in light of the manner in which they were born, family background, where they come from, what they accept, or regardless of whether they have an incapacity. One of the aspects of equality is the uniformity of chances in the questions of public employment, as ensured in Article 16(1).

In Indra Sawhney case, the nine-judge seat observed that under Article 16(1), appointments and posts can be reserved for a class. Along these lines, reservation in state administrations for backward classes might be made under Article 16(1) as well, as it depends on the premises of equality.

Articles 16(4) and 16(4A), under which the state might arrange reservation and reservation in advancement separately, are unavoidably purified groupings and outlines of Article 16(1). In M. Nagaraj case, the bench made it exceptionally express by saying that, “in our view, equity as an idea is held significantly under Article 16(4A).”

About the bill

The Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021 was introduced in Lok Sabha by the Minister of Social Justice and Empowerment, Dr. Virendra Kumar, on August 9, 2021.

By giving the established height to the National Commission for the Backward Communities in 2017, the NCBC was made the nodal office to manage the issues concerning OBCs including a pivotal part of complaint redressal which was being managed by the National Commission for Scheduled Castes.

The amendment gave a solid balance to the OBCs by ensuring the institutional mechanism and constitutional status of their class. However, before the recent amendment, there have been many issues regarding the community list of other backward classes, as per the estimation almost 671 OBC people group would have lost admittance to the reservation in instructive foundations and arrangements if the state list would have been abolished, that would have unfavorably affected almost one-fifth of the absolute OBC people group.

But the hundred and twenty-seventh Amendment of the Constitution has enabled the states to prepare their list of social and Backward lists.

The 127^th Constitution Amendment bill aims to bypass the Supreme Court ruling which laid down that only Centre could notify socially and educationally backward classes.[1]

The Maharashtra case

Jaishri Laxmanrao Patil vs The Chief Minister and ors.[2]

The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act was enacted in the state to provide 16 percent reservation to the Maratha community in educational institutions and government employment. Due to enactment of this Act the reservation in the state of Maharashtra raised from 52 percent to 68 percent.

The petitioners challenged this Act before the Bombay High Court as being a fraud to the Constitution of India. It was contended that this enactment violated the Supreme Court’s judgement in Indra Sawhney vs. Union of India which provided that the reservation in any state shall not exceed 50 percent.

It was also contended that after the Constitution (102^nd Amendment) Act which came into force in August, 2018 the state legislature has lost its power to declare a particular class socially and educationally backward.

High court judgement

The Bombay High Court upheld the validity of the enactment while ruling that the Indra Sawhney judgment does not hinder any state’s power to provide a reservation greater than 50 percent in extra-ordinary circumstances. The Bench held that this fact warranted the exceeding of 50 percent cap on reservation in the state.

In regard to the second contention the High Court ruled that restriction under Article 342A is applicable only to the central list of backward classes. Thus, the Court held that the 102^nd Amendment does not deprive the State of its powers to specify the socially and educationally backward classes.

Supreme court judgement

In July, 2019 appeals were filed before the Supreme Court against the High Court verdict. The Supreme Court addressed various legal issues and finally passed a judgement in May, 2021.

The Court struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 which extended reservation to the Maratha community in public education and employment.

It was held that there were no extra-ordinary circumstances to grant over 50 percent reservation to Maratha community and the reservation must be in accordance with the rules prescribed in Indra Sawhney judgement.

The Supreme Court said that the judgement in Indra Sawhney vs Union of India need not be referred to any bench as 50 percent ceiling on reservation laid down in Indra Sawhney is a good and valid law.

The Court also added that the Maharashtra state reservation Act has violated the principles of equality and exceeding the ceiling limit of 50 percent clearly violated Articles 15 and 14 of the Constitution.

The second part of judgement dealt with validity of 102^nd Constitution Amendment, the Bench addressed the question whether the Constitution (102^nd amendment) Act of 2018 which introduced the national commission of backward classes interfered with the authority of state legislatures to provide reservation to the socially and educationally backward communities in their own jurisdiction.

This amendment introduced Articles 338B and 342A in the constitution. The former deals with establishment of National Commission for Backward Classes and the latter empowers the president to specify the socially and educationally backward communities in the state. The Bench differed in its interpretation of Article 342A of the Constitution.

Justices Nazeer and Bhushan took the view that the parliament did not intend to take away power of states to identify backward classes. They upheld the 102^nd constitutional amendment.

Justice Rao, Bhat and Gupta held that under Article 342A, the President alone is empowered to identify socially and educationally backward classes. The States can only make suggestions to the President in that matter. However, they too upheld the validity of 102^nd Constitutional Amendment.[3]

This Judgement laid the grounds for an amendment much needed to give state legislature powers to identify backward classes in their jurisdiction. Thus, the 127^th Constitution amendment came into play.

Why the opposition supported it?

The opposition decided that it will cooperate with Narendra Modi Government to clear the amendment.

The opposition in Rajya Sabha was in midst of a protest against the government for trying to push through a diluted debate on farmers issue instead of going for a repeal on the farm laws.

A meeting was held at Mallikarjun Kharge’s office (the Rajya Sabha leader of opposition) where two parties were in favour of continuous protest while others were of the opinion that the constitution amendment should be cleared as it empowers the state on a very sensitive subject.

Thus, it was decided that the passage of bill will be allowed with full co-operation of the opposition party. The protest shall continue on all the other issues.

After a discussion that lasted nearly six hours the Lok Sabha finally passed the Constitution (127^th Amendment) Bill on August 10, 2021.

The bill amended clauses 1 and 2 of Article 342A and also introduced a new clause 3. The Bill also amended Articles 366(26c) and 338B (9). The Amendment Bill has been specially designed to clarify that the states can maintain the “state list” of OBCs as was the system before the Supreme Court Judgement. The state list will be completely taken out of the ambit of the President and will be notified by the state assembly. [4]

The essence of the 127^th constitution amendment

The amendment is found necessary to restore the powers of state governments to maintain state lists of OBCs which was taken away by the Supreme Court interpretation. Around 671 OBC communities would have lost access to reservation in various educational institutions and in appointments if the state list got abolished. This would have adversely affected about one-fifth of total OBC communities.

It has restructured our constitution as even after years of independence, the system of our country has not accepted the fundamental law of the polity, weaker sections of society are still unborn, the rich and powerful people are one step ahead in every sector because of their status and front footing in society, the effectiveness of 127 is far more than “NO OBJECTION BY OPPOSITION” but a lot of vulnerable sections live from hand to mouth and the amendment can contribute in some parts for their welfare and upliftment.

It also has a huge potential to empower people from backward communities, enhancing their social status through better education and employment opportunities, paving the way for inclusive development. All the more significantly, such modifications will impart socio-legal status among individuals and bridge the gap between the elite and backward class.

Such a central oversight can’t be sustainable as it does not allow states to respond to the socio-economic requirements which are specific to a state or region quickly. Besides, India consists of a federal structure, and to maintain that structure this amendment was necessary.[5]

In conclusion, the essence of the constitutional amendment points to the development of society both socially and economically, as they would get recognized and come up with altruistic ideas for the benefit of the community or society at large which will strengthen human connections and decisions making processes.

References:

[1] Dr Anuja in Voices, India, TOI, 127th Amendment Bill, 2021: The path to inclusive development, Times of India (16^thAugust, 2021), https://timesofindia.indiatimes.com/blogs/voices/127th-amendment-bill-2021-the-path-to-inclusive-development/

[2]Ashok Bhushan, Jaishri Laxmanrao Patil vs The Chief Minister And Ors. on 5 May, 2021, Indian Kanoon (5^th May, 2021), https://indiankanoon.org/doc/189806642/.

[3] Debayan Roy, Maratha Reservation and Supreme Court, Bar and Bench (5^th May, 2021),    https://www.barandbench.com/news/litigation/supreme-court-strikes-down-maratha-reservation-law-upholds-50-percent-cap-indra-sawhney.

[4] Gulam Jeelani, What is the Constitution (127th) Amendment Bill, 2021 passed in Lok Sabha and why did the Opposition support it? (11^th August, 2021), https://www.moneycontrol.com/news/trends/current-affairs-trends/explained-what-is-the-constitution-127th-amendment-bill-2021-passed-in-lok-sabha-and-why-did-the-opposition-support-it-7309761.html

[5] Constitutional (127th) Amendment Bill, 2021 (6^th August, 2021), https://www.drishtiias.com/daily-updates/daily-news-analysis/constitutional-127th-amendment-bill-2021

This article has been authored by Siddhi Sharma & Veneet Sharma, students at Bharati Vidyapeeth University, New Delhi.