On 31 July, in the Rajya Sabha, the ruling Bharatiya Janata Party dropped a key clause in a constitutional amendment bill that would confer constitutional status to the National Commission for Backward Classes (NCBC) because of an amendment moved by the opposition parties. The opposition moved an amendment to the composition and function of the commission, leaving the government with the choice to either accept the amended clause or drop the clause entirely from the bill. Although several opposition members of the Rajya Sabha expressed their support for constituting a constitutional body for backward classes, they also argued that the bill diluted the powers of the existing commission and the role of state governments. The NCBC already existed as a statutory body, but the proposed bill would constitute a new commission that would have the status of a constitutional body—on par with the National Commission for Scheduled Castes and National Commission for Scheduled Tribes. In an unprecedented vote that effectively rendered the bill redundant, the Rajya Sabha passed the bill without the clause constituting the commission.
The criticism of the bill, like the support for granting the commission constitutional status, cut across party lines. Nadimul Haque of the Trinamool Congress noted that the commission would be “wholly unequipped to identify classes that are in need of special protection by the state.” He added that conferring the constitutional status on the commission “must not come at the cost of introducing anti-federal elements in our Constitution.” D Raja, a member of the Communist Party of India, argued that the bill did not give sufficient powers to the commission and questioned the motives of the government in introducing the bill. “Are we only doing lip service to these sections? Is it to hoodwink these sections for political advantage or electoral advantage?” Raja asked.
The Constitution (One Hundred and Twenty Third) Amendment Bill, 2017 was passed in the Lok Sabha on 10 April, 2017. The next day, the government attempted to , but opposition members of parliament resisted. Some opposition MPs, such as Naresh Agrawal of the Samajwadi Party, argued that they needed more time to move amendments. Several members, including the leader of the opposition Ghulam Nabi Azad, said that, during informal discussions outside the house, members of parliament from the ruling party had agreed to refer the bill to a select committee for examination. Mukhtar Abbas Naqvi, the minister of state for parliamentary affairs, insisted that he had only heard the opposition members’ requests to send the bill to a select committee, but had not agreed to do so. At the end of the day’s discussion, the government relented and referred the bill to a select committee.
The committee, which comprised of 25 members from different political parties, submitted its report on 19 July. Despite several amendments proposed by its members as well as two notes of dissent from four members—by Sukhendu Sekhar Roy of the TMC, and a second collectively submitted by Digvijaya Singh, BK Hariprasad, and Husain Dalwai, of the Congress—the report recommended that the bill be passed without any amendments. (Disclosure: I am currently assisting Dalwai, as a researcher.) These dissent notes were included in the report, however. It noted that the bill would “strengthen affirmative action in favour of socially and educationally backward classes as well as further boost concept of cooperative federalism between the Centre and States.” Contrastingly, Roy’s dissent note stated that the bill appeared to be “against the spirit of co-operative federalism” and that it would “undermine the role of State Governments and the State Commissions for Backward Classes.” The note by the Congress members proposed amendments to the bill that addressed the same concerns, among others, as those of Roy.
An examination of the present procedure governing the NCBC illuminates the concerns raised in the dissent notes. The NCBC was established as a statutory body in 1992, in compliance with Supreme Court’s judgment in the case of Indra Sawhney vs Union of India. The Supreme Court directed all state and central governments to set up expert, impartial bodies to advise the government on inclusion or exclusion of communities from the backward-classes list, and to look into complaints of over- or under-inclusion. The court also directed that the “advice tendered by such body shall ordinarily be binding upon the Government” and that the government must record its reasons in writing if it chose not to accept the advice.
The following year, the parliament enacted the National Commission for Backward Classes Act. The commission was empowered as per the Indra Sawhney judgment. Ordinarily, its recommendations regarding the backward classes list would be binding on the central government—as the apex court had ruled. However, unlike the NCSC and NCST, the NCBC was not empowered to examine other grievances of backward classes, such as the deprivation of rights.
The constitutional amendment bill aims to arm the NCBC with powers to look into complaints and grievances, and to present reports and recommendations for the welfare of communities classified as backward-class to the president; as well as on implementation of the safeguards in place for securing their rights. But through this bill, the government also appears to be taking away the raison d’être of the commission and, in the process, is seemingly flouting the Supreme Court’s directions as well. The bill stipulates that the president of India, who is bound by the advice given by the council of ministers headed by the prime minister, would notify a list of socially and educationally backward classes (SEBCs) as applicable to any particular state, in consultation with the governors of the respective states. This list, the bill states, can then be modified only through a law passed by parliament.
In a departure from the existing NCBC Act and the Indra Sawhney judgment, the bill envisages only a consultative role for the commission and its recommendations would no longer be binding on the government. Although the NCBC Act mandates that the chairperson of the commission must have been a judge of the Supreme Court or a high court, the constitutional amendment bill does not specify any eligibility criteria for the chairperson person—potentially paving the way for a political appointment.
The cumulative effect of the provisions in the amendment bill could be analysed by envisioning a scenario in which the central government refers to the commission a request it receives from a community for inclusion in the backward classes list. Suppose the commission finds that the community does not fit the criterion of “socially or educationally backward” and rejects the request, the government can still go ahead and include this community in the list without recording reasons for rejecting the recommendation. Once such a list is notified, it can only be modified by the parliament passing a law to that effect. However, this poses additional concerns as such a law would be contingent on the government’s decision to bring a bill to that effect to the parliament, and the advice of the commission would no longer be binding on the government, as per the proposed amendment. The only remedy against the inclusion or exclusion would be to approach the court against it.
This assumes significance because while a court can presently question the government if it rejects the advice of the NCBC, the proposed amendment removes that obligation on the government. In March 2014, ahead of the general elections, the United Progressive Alliance-led government issued a notification to include Jats within the central list of OBC communities, going against the recommendation of the NCBC. One year later, the Supreme Court struck down this notification. While it is evident that political motivations may factor into these decisions, it is important to ensure that the law of the land is immune to such electoral influences.
In their dissent note, the Congress members had proposed several amendments to the bill, four of which they moved as amendments in the Rajya Sabha. The committee’s report included amendments proposed by several other members, including Sharad Yadav of the Janata Dal (United), Dilip Kumar Tirkey of the Biju Janata Dal, and MK Kanimozhi of the Dravida Munnetra Kazhagam. Dalwai had also separately submitted another note of dissent, which discussed the arguments and concerns against the bill in detail. However, this note was not included in the committee’s report. When he raised this point during the discussion on the bill in the Rajya Sabha, Bhupender Yadav, who was the chairperson of the select committee, said that he took this decision under Rule 90 (6) of the Rules of Procedures of the Rajya Sabha. However, this rule only states that the dissent must be in decorous language, must not refer to any discussion in the committee, and must not cast aspersions on the chairperson or the committee. Yadav did not explain before the Rajya Sabha how Dalwai’s note breached these conditions in Rule 90.
On 31 July, when the bill came up for discussion in the Rajya Sabha, there were 129 members present and voting, out of the total strength of 245. Since this was a constitutional amendment bill, it could only be passed if a majority of the total membership of the house, or 123 members, and a two-thirds majority of the members present and voting, or 86 members in this case, voted in favour of each of the clauses of the Bill. At 6.30 pm, after over four hours of discussion on the bill, the voting was initiated, the lobbies were cleared and the doors were closed—no MP could now go in or go out.
The first clause to be taken up for voting was Clause 2 of the Bill, which was unanimously accepted. Clause 3 which provided for composition, functions and powers of the commission, was taken up next. Thirty-eight amendments had been proposed to this clause, but most members withdrew their amendments after assurances by Thawar Chand Gehlot, the union minister for social justice and empowerment, which included a statement that the central government would not interfere in the lists of backward classes prepared by the state governments. However, Gehlot did not make assurances about the commission’s recommendations being binding, and said that the procedure to be followed by the commission would be framed later. One of the amendments that was proposed by several opposition members was that the name of the commission should be changed to the “National Commission for Socially and Educationally Backward Classes,” to prevent the inclusion of a community on any other basis. Far from making an assurance in this regard, Gehlot, in his speech, made a reference to “socially or economically backward classes.” When Digvijaya Singh objected to the use of “economically” instead of “educationally” and said that he spoke incorrectly, Gehlot responded that the “bitter truth cannot be handled by everyone.”
Dalwai, Hariprasad and Singh withdrew their individual amendments, but collectively moved four amendments to Clause 3, which were also included in their note of dissent. Their first amendment sought to increase the number of members in the commission from five to seven—with all the members belonging to backward classes, and at least one member being a woman, and at least one member belonging to a minority community. The second amendment sought to make the advice of the commission ordinarily binding on the central government, with reasons for rejection of the advice to be recorded in writing. The last two amendments proposed to ensure the participation of the commission in planning the socio-economic development of SEBCs, and to make it mandatory for the commission to consult state governments for policy matters concerning backward classes in that particular state.
While the amendments to the constitution required the special majority, an amendment to the clauses in the bill only need a simple majority to be adopted, and could thus be passed with 65 votes in its favour. The vote was conducted—75 members voted in favour of all four amendments, and 54 voted against. The clause stood amended. As PJ Kurien, the deputy chairperson, explained to the house, the government was left with two options: either to unanimously pass the amended clause with two-thirds majority as required, or to drop it altogether, in which case the bill would pass without the clause that was the very essence of it.
Heated exchanges between the government and opposition followed as neither showed an inclination to budge from their position. Arun Jaitley, the BJP’s leader of the house, said to the house: “If that is the insistence, if they want the OBC reservation to fail, let them do so.” Kapil Sibal, of the Congress, questioned Jaitley’s opposition to the amendments: “Do you not want a minority representation? Do you not want women’s representation?” The government asked for an adjournment, and the deputy chairman agreed to allow it only if the house unanimously agreed, but the opposition pointed out that the lobbies cannot be opened. The discussion was informally suspended with the lobbies shut, but when the discussion resumed, no consensus had been reached.
At 7.35 pm, the house voted on the amended Clause 3: only 74 MPs voted in its favour and 54 voted against it. The clause failed to obtain the assent of half the strength of the total house, and Clause 3 as amended was dropped from the bill. This led to further heated exchanges between the government and the opposition. Naqvi told the opposition that they would “face the punishment for this for a long time,” and Azad responded that the “government wants to weaken the backward commission on its own.” Sitaram Yechury, of the CPI(M), questioned the deputy chairman’s decision to proceed with the bill, arguing that “Even if you approve the rest, it is redundant.” However, the deputy chairman insisted said that no rule permitted him to stop the vote.
The vote continued, and the rest of the clauses, despite several amendments by MPs, passed smoothly and unanimously—the bill was passed with the most important clause missing. The government may have been embarrassed, but it was not left without a remedy. It could amend the bill in the Lok Sabha to bring back the original Clause 3, and then return to the Rajya Sabha with a strength of numbers that could prevent an attempt to amend the bill.
The ideal outcome of this political drama would be if the government seriously considers the demands of the opposition and makes the requisite changes to the bill itself before bringing it to the Lok Sabha. Alternatively, the opposition must persevere and push the government to make the changes. A failure to do so could mean that under the garb of the progressive mandate to confer constitutional status to the National Commission for Backward Classes, the government could risk subjecting the process of identification of backward communities to the influence of political agenda.
Maansi Verma is a lawyer and policy enthusiast who works with Husain Dalwai, a member of parliament in the Rajya Sabha, as a legislative and policy researcher.