New OBC commission to get constitutional status

New Delhi: The Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) has approved a proposal to provide constitutional backing to the National Commission for Socially and Educationally Backward Classes (NSEBC).

It will replace the existing National Commission for Backward Classes (NCBC), created in response to a Supreme Court ruling in 1992; it examines and recommends requests for inclusion and exclusion in the list of Other Backward Classes or OBCs.

The decision, though long in the works, comes within weeks of a landslide win for the BJP in the Uttar Pradesh polls—in which OBCs played a key role for the party. It is, therefore, being viewed as a tacit acknowledgement of this social formation by the BJP.

“The Union cabinet...has approved setting up of a National Commission for Socially and Educationally Backward Classes as a constitutional body by making an amendment to the Constitution, mainly by insertion of Article 338B. The bill will be introduced in Parliament,” a senior government official said, requesting anonymity.

A constitutional amendment requires two-thirds approval of both houses of Parliament and subsequent ratification by 50% of the state assemblies.

Senior advocate and human rights lawyer Indira Jaising said the proposed change was significant. “First, making it a constitutional amendment means that it cannot be amended by a simple majority in Parliament. Secondly and more significantly, the earlier provision says ‘The President may appoint’ whereas I am presuming there is no choice here and it will be a permanent commission in place, similar to the SC and ST (Commission),” she said.

Like the NCBC, the new body too will comprise of a chairperson, a vice-chairperson and three other members. According to a former member of the NCBC, the demand for giving it a constitutional authority has been pending for years. “We did not have powers to hear complaints from OBC members like the SC/ST commissions did, and in that sense, a constitutional authority will ensure it has more power. The government has opted for a new body altogether instead of giving NCBC more powers; more details will emerge once the bill is tabled in Parliament,” the former member said requesting anonymity.

Interestingly, the government’s move comes at a time when the Jat agitation is demanding OBC status for the community. The commission has powers to examine requests for inclusion of any community in the list of backward classes and hear complaints of over-inclusion or under-inclusion, following which it advises the Union government. In its new form, the constitutional authority could give it more teeth.

According to Jaising, the new body is likely to be similar to the National Commission for Scheduled Castes under Article 338 and the National Commission for Scheduled Tribes under Section 338A which were introduced in the Constitution by way of two constitutional amendments in 1990 and 2003.

In the case of Indra Sawhney versus Union of India, the Supreme Court in 1992 found that it was not invalid to identify a group by any criteria like occupation, social, educational or economic situations. However, it noted that social and educationally backward class under Article 340 had to be construed in a limited sense and did not have the wide sweep as under the fundamental right guaranteed to backward classes in Article 16(4). This provision empowers the government to make reservations in appointments in favour of “any backward class of citizens”.