The Bharatiya Janata Party is jubilant that Parliament, earlier this month, finally adopted the Constitution (123rd Amendment) Bill, which seeks to create a new National Commission for Backward Classes. The Bill grants the Commission constitutional status and has enhanced its powers substantially.

But the positive attributes of the Bill constitute only one part of the story. The other part, ironically, puts a question mark on the Bill’s fate.

This is because the Bill is in violation of the Supreme Court’s 1992 judgment in Indra Sawhney v Union of India. Popularly known as the Mandal judgment, it upheld the Union government’s decision of 1990 to grant 27% reservation in Central government jobs for the socially and educationally backward classes, also known as the Other Backward Classes.

In doing so, the Supreme Court decreed that a body of experts should be tasked with advising the government on complaints regarding social groups having been wrongly included in or excluded from the list of those eligible for 27% reservation. The expert body’s advice was to be ordinarily binding on the government. In case the government rejected the advice, it had to state its reasons in writing.

The Constitution (123rd Amendment) Bill does not factor in these principles.

The previous Commission

But first, a look at the earlier National Commission for Backward Classes. This Commission was established by an eponymous Act in 1993, and was deemed an expert body because it comprised a social scientist, two persons who had special knowledge of India’s backward classes and a member-secretary of the rank of secretary in the Union government. Its chairperson was a High Court or Supreme Court judge. The reasoning was that the judge would have the training to impartially weigh the evidence a social group would furnish in support of its claim to being a socially and educationally backward class. It was obviously presumed that there would be a scramble among socially advanced groups to become backward, so to speak, in order to benefit from reservations.

The tenure of each of these members was to be for three years, thus providing a measure of independence to the Commission from the political class.

By contrast, the Constitution (123rd Amendment) Bill neither describes the expertise Commission members should possess nor provides a fixed tenure for them. Nor does it spell out explicitly whether the Commission will vet complaints of exclusion from and requests for inclusion in the list of classes granted 27% reservation.

This is evident from Article 342A (1) and Article 342A (2), the two clauses the 123rd Amendment Bill inserts into the Constitution.

Article 342A (1) empowers the President to notify, in consultation with the governor, for each state and Union Territory, the list of socially and educationally backward classes. Though ambiguously phrased, the list is presumably for Central government purposes – it names castes in each state that qualify for 27% reservation in Union government jobs and seats in its educational institutions. This list is called the Central list.

Article 342A (2) vests in Parliament the authority to include groups in the Central list or exclude them from it. This decision was earlier the Central government’s, based on the Commission’s advice.

“Not giving the role of deciding the inclusion and exclusion to the proposed Constitutional Commission, which the earlier Commission had, will be a breach of the direction of the Supreme Court in Indra Sawhney,” said PS Krishnan, who was the first member-secretary of the National Commission for Backward Classes. Krishnan is an expert on social justice with seven decades of experience. “If there is any challenge in the Supreme Court on this account, it will be difficult for the government to successfully defend this omission.”

A former Supreme Court judge who requested anonymity upheld Krishnan’s view.

The government, however, will have the opportunity to align the Bill with the Supreme Court’s directives once it becomes an Act. For the Bill to become law, half of India’s state legislatures must ratify it, and the President must give his assent. Rules to implement the Act will be framed at this stage. Rules are subordinate legislation undertaken by the executive (read bureaucrats and ministers) to implement an Act.

Thus, rules can be framed to include experts in the Commission and provide them with a fixed tenure. The rules can also lay down that any request for inclusion in the Central list has to be vetted by the Commission, whose advice to the government would ordinarily be binding on it.

Yet an intriguing backstory has cast a shadow on the government’s intent behind bringing in the Bill.

(Photo credit: AFP).

Attempted amendments to Bill

When the Constitution (123rd Amendment) Bill was introduced in the Rajya Sabha in July 2017, members of the Congress party had introduced a string of amendments. One of these altered Article 342A (1) to say that the Commission should examine the Central list of socially and educationally backward classes and tender its opinion to the Union government before the President notified the list. The advice to the government was to be “ordinarily binding” on it.

This amendment was presumably aimed at preventing the BJP government from tailoring the Central list to suit its electoral purposes.

Another amendment empowered the Commission to examine requests for inclusion in or exclusion from the Central list and advise the Union government accordingly. This advice, too, was to be ordinarily binding on the Centre. In case the Commission’s advice was rejected, the government was to table its reasons for this in writing in both Houses of Parliament.

“We introduced these amendments so that the Bill did not flout the Supreme Court’s directives,” said Husain Dalwai, one of three Congress Rajya Sabha MPs who sponsored the amendments.

But the amendments were re-amended, so to speak, and the Bill was passed as it had been originally conceived.

‘Beneficial for BJP’

Given that the amendments aligned the Bill with the Supreme Court’s directives in Indra Sawhney, why did the Union government reject these changes?

The Bill in its present form is advantageous to the BJP, Dalwai argued. Without the Commission operating as a filter to sift genuine claims for inclusion from bogus ones, the government can include socially advanced groups – Marathas for instance – in the category of socially and educationally backward classes and skew the reservation policy.

Satish Deshpande, professor at Delhi School of Sociology, provided another compelling reason. “Through the Bill, the BJP wants to shift the blame from itself to Parliament for not fulfilling the promise of reservation it made to dominant castes,” he said.

From this perspective, once The Constitution (123rdAmendment) Bill becomes law, the BJP could bring a Bill to include socially advanced groups in the Central list of socially and educationally backward classes. MPs belonging to classes already availing of 27% reservation would undoubtedly resist the move. This is because the new entrants, relatively prosperous and more educated, will run away with a chunk of the reservation cake and leave the leftovers for those already in the Central list.

It is possible that MPs belonging to the backward classes could abstain in large numbers to ensure that this Bill is defeated. Or a prior consensus among political parties, including the BJP, might be worked out to defeat the Bill. This is because the BJP or, for that matter any other party, will not court a dominant group in one state to alienate backward classes countrywide.

“The BJP can then turn to the socially dominant groups to say that we tried, but we can do little in the face of opposition from Parliament,” said Deshpande.

Such a method also benefits the BJP because it will block Opposition parties from taking advantage of the discontent brewing among dominant social groups demanding reservation, such as Marathas in Maharashtra, Patels in Gujarat and Kapus in Andhra Pradesh.

Members of the Maratha community, seeking reservations in jobs and higher education, during a protest in Mumbai. (Photo credit: PTI).

‘Need national reservation policy’

Another scenario links the gameplan behind the Constitution (123rd Amendment) Bill to the ongoing exercise of sub-categorising the socially and educationally backward classes. This exercise seeks to divide them into at least three categories – backward, most backward and extremely backward. The 27% reservation quota will be sliced and distributed among them.

Against this backdrop, the BJP can bring in a Bill to include socially advanced groups in the Central list, but club them in the sub-category of “backward”. Such a manoeuvre will not diminish the reservation share of those categorised as “most backward” and “extremely backward”. It will then become easier for the BJP to persuade MPs belonging to these two sub-categories to vote for the Bill that includes socially advanced groups in the Central list.

These scenarios have been imagined to second-guess the BJP’s attempt to push the Constitution (123rd Amendment) Bill without the amendments that the Rajya Sabha had introduced.

Nevertheless, it is almost certain that attempts to include socially advanced groups will be challenged in court on the grounds of arbitrariness, more so if the Commission does not vet the decision.

Indeed, it is to counter the argument of arbitrariness that the Maharashtra government has entrusted the State Commission for Backward Classes to conduct surveys to determine whether Marathas can be classified as socially and educationally backward. The Maratha community’s demand for reservation had been earlier rejected by both the National and the State Commissions.

It is unlikely that their demand will be accepted even now, regardless of any evidence of a slide in the community’s economic fortunes. This is because reservation is aimed at enabling communities to overcome the structural problems arising from the low social status they historically have had in the hierarchical caste system. For centuries, Marathas have been part of the ruling class.

“Leaders who hold out the promise of reservation to Marathas are as guilty of abetting suicide and violence as some journalists were when they fanned [through their writings] the agitation against the 1990 decision to implement the Mandal report, which provided 27% reservation,” said Krishnan. The anti-Mandal agitation had triggered a spate of self-immolations by those opposed to it.

It seems socially advanced groups will continue to press the state to grant them reservation. This is why Krishnan had suggested to the Select Committee on the 123rd Amendment Bill to add a provision in the Bill stating that a social group whose claims to being a socially and educationally backward had been rejected by the previous National Commission for Backward Classes will not be included in the Central list.

“Just as we have national defence policy, so too we must have a national reservation policy,” said Krishnan. He said all parties agree that India must be nuclear, but that it should be used for peaceful purposes. “Likewise, they must have a national reservation policy. They should be honest enough to tell socially advanced groups that they are not socially and educationally backward and do not need reservation.”