Compared to SCs/STs reservation, the provision of reservation for Other Backward Classes (OBCs) in India remained a matter of controversy and legal dispute from the day it was implemented.
In October 2017, Ram Nath Kovind, the President of Indian Republic, notified a five-member Commission headed by G. Rohini, the former Chief Justice of Delhi Court, under Article 340 of Indian Constitution, to explore the idea of sub-categorisation in order to examine the a. extent of inequitable distribution of benefits of reservation among various castes and communities under OBCs, b. to work out the various mechanisms, criteria and parameters for the actual subcategories to re-arrange the 27% reservation and c. for bringing order in the Central list of OBCs by removing repetitions.
Earlier, in 2011, the National Commission for Backward Classes had recommended sub-categorisation within OBCs as they formed around 35 percent of the total population of the country and 11 states of India, such as West Bengal, Tamil Nadu, Maharashtra, Andhra Pradesh, Telangana, Karnataka, Jharkhand, Bihar, Jammu and Kashmir region and Haryana and the Union Territory of Puducherry had already implemented the sub-categorisation. However, its report revealed that the prime beneficiaries of 97 percent reservation included the Yadav, Kurmi, Jat, Saini, Thevar, Ezhava and Vokkaliga castes.
Earlier, following the implementation of the Mandal Commission report in 1992, the National Commission for Backward Classes (NCBC) was formed in 1993 to examine the complaints regarding inclusion and exclusion of groups within the list of backward classes and advise the central government, and it found a constitutional status through the 102nd Constitutional Amendment Act which came into force in August 2018.
It inserted three new articles, that is, 342A, 366 (26C) and 338B in the Constitution. Among them Article 342A deals with the power of the President of India to notify a particular caste as a socially and educationally backward and the power of the Parliament to change the list, and Article 366 (26C) also gives the President alone the exclusion power of all communities to identify the Socially and Educationally Backward Classes (SEBC) and include them in a list to be published under Article 342A (1). In this context, the States can only make suggestions to the President or the NCBC for removing or adding or modifying the list of backward classes. Article 338B, inserted in the amendment only deals with the structure, duties, and powers of the NCBC.
Wherever seats are so limited that the reservation for the SC/ST alone fills up the 50 percent quota, then no seats could be reserved for the OBC candidates at all. As the OBC reservation was merely ‘statutory’ and not ‘constitutional’, the government of the day was fully empowered to scrap the OBC reservation by simply amending the law because it had no constitutional guarantee.
Even before making the 102nd Amendment in 2018 and 1993, the State Governments and Union territories were empowered to prepare and maintain their own State List or Union territory List of SEBC, but the amendment of 2018 created a confusion between Centre and the State Governments and it was understood that the Centre has taken the power of State Governments and Union territories to include or exclude any caste in the list. In order to remove this anomaly and misunderstanding the 127th Constitutional Amendment Act was moved in the first week of August this year.
The 127th Amendment aims to adequately clarify that the states and Union territories are empowered to prepare their own list of SEBCs and recently it was necessitated after the Supreme Court in its Maratha reservation ruling on May 5 upheld the 102nd Amendment, but said that the President, based on the recommendations of the NCBC, would determine which community would be included on the state OBC list. Although, it added that the power of states to make reservations, in favour of particular communities or caste, the quantum of reservation, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16, except with respect to identification of SEBCs, remain undisturbed. Therefore, this amendment necessitated a Supreme Court interpretation because if the State lists of State gets abolished, nearly 671 communities would lose access to reservation in educational institutions and in appointments.
The Bill find wide support of both Treasury as well as Opposition parties as restoring powers of the states to identify backward classes has been a demand by many regional parties and even the ruling party’s own OBC leaders and both major parties want to get support among the OBC communities in the poll-bound states. That political angle had forced them to come together and pass the Bill with an overwhelming majority. In May 2021, too, the three-judge bench of the Supreme Court of India while delivering its judgement on a petition challenging Section 12 (2-C) of the Maharashtra Zila Parishad and Panchayat Samitis Act 1961, which mandated that the state should provide for 27 percent reservation to OBCs, overturned its own earlier decision and declared that OBCs reservation is merely a statutory provision and not constitutional as reservation for the SCs and STs and struck down the elections of several OBC members of the Zila Parishad along with quashing the OBCs quota fixed by the State Election Commission (SEC), because the OBC candidates in these districts together with the SC/ST quota the total number of reserved seats in these districts went beyond the limited quota of 50 percent reservation for all categories.
In other words, it means clearly that wherever seats are so limited that the reservation for the SC/ST alone fills up the 50 percent quota, then no seats could be reserved for the OBC candidates at all. As the OBC reservation was merely ‘statutory’ and not ‘constitutional’, the government of the day was fully empowered to scrap the OBC reservation by simply amending the law because it had no constitutional guarantee.
In the context, the apex court had also quashed the review petition of Maharashtra government, challenging its earlier decision that scrapped a quota in local bodies of the state. There is also a tendency prevalent in the government to subvert the OBC and SC/ST reservation in educational institutions and in many government bodies. For instance, till the UPA government days the reservation for the teaching staff in universities and other higher education institutes was decided each year on the basis of total number of vacancies notified by the institute at the beginning of the year, but now it is decided separately for each department and if there is only one vacancy in any department, it will be unreserved but where two, one will be unreserved and one for SC/ST and no seat left for OBC. With the latest judgements/explanations of the Supreme Court of India, the OBC leaders of Maharashtra, in particular, have considered the verdict a major setback for the community.
