A widely welcomed move to grant constitutional status to the National Commission for Backward Classes (NCBC) has also brought with it a whiff of controversy over whether it amounts to encroaching on the domain of the States. The Lok Sabha passed the Constitution (123rd Amendment) Bill, 2017, in April. In the Rajya Sabha, the Bill was referred to a select committee, whose report is expected in the monsoon session. The Supreme Court, in its final verdict in the Indira Sawhney (Mandal Commission) case, had directed the establishment of the NCBC as a statutory body. Based on this, a law was passed in 1993 to set up the commission. The NCBC has been examining cases for inclusion in the BC lists for the Central government since then.
The idea behind the proposed amendment is to elevate the status of the panel from that of a statutory body to a constitutional one, on a par with the National Commissions for Scheduled Castes and Scheduled Tribes.
A clause in the 123rd Amendment says 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 fears that the Centre is taking over the function of inclusion and exclusion of communities from the ‘Backward Classes’ list.
The Bill’s language
One 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 judgment, in E.V. Chinnaiah vs. Andhra Pradesh, ruled in 2004 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.
Several Opposition parties, which in general welcome the grant of constitutional status to the BC Commission, have said the Bill, if enacted, would undermine federalism, as it amounts to usurping the power of State governments to prepare their own BC lists. The Centre has sought to allay these fears, saying the powers of the States would remain unaffected. In any case, the list for every State will be prepared only in consultation with the State government.
