105th CONSTITUTION AMENDMENT ACT 2021

Union Minister for Social Justice & Empowerment Dr. Virendra Kumar introduced 127th Constitution Amendment Bill 2021 in Lok Sabha on 9th Aug 2021, to restore the power of states to make their own OBC lists. This bill has been introduced to bypass Supreme Court ruling of 5th May 2021 in which Supreme Court Struck down the Maharashtra Govt Law which gave reservation for Maratha Community in education and in state govt jobs in Maharashtra and said it violates “right to equality”. Supreme Court said that only the centre could notify Socially and Educationally Backward Classes (SEBC’s) and not the states. President on the basis of recommendations of National Commission for Backward Classes would determine which communities would be included in states OBC lists.

The amendment is necessary to restore the powers of state government to maintain a state list of OBC’s which was taken away by Supreme Court interpretation. If the state list gets abolished, nearly 671 OBC communities would lose access to reservations in educational institutions & in govt jobs. This could adversely impact nearly 1/5th of the total OBC communities.

The purpose of this bill is ensure that states can maintain the state list of OBC’s as was the system prior to Supreme Court judgment. The state OBC’s list will be completely taken out of the ambit of president and will be notified by the state assembly.

As we know Jats in Haryana, Marathas in Maharashtra, Patels in Gujrat, Gurjars in Rajasthan, Lingayats in Karnataka etc. have been demanding inclusion of their castes in OBC list. The states will become competent by this amendment to include these castes in their state OBC’s lists and provide them reservation in educational institutions and in state govt. jobs.

Elections for the 5 State Legislative Assemblies are in pipeline. Ruling BJP plans to get support from OBC communities especially in crucial Uttar Pradesh. The Political angle of this bill has forced the opposition parties too to support the bill. They have no option but to support the bill. This Bill required to be passed by both houses of Parliament separately by their special majority i.e by 2/3rd majority. No joint sitting of Parliament can be held to pass a Constitutional Amendment Bill, Money Bill or Finance Bill.

This bill was passed by Lok Sabha on 10th August 2021. 386 members supported the bill and no member opposed it. Rajya Sabha passed this bill on 11th August 2021 by 187 votes with no vote in opposition.

After getting the accent of President on 18th August 2021, this bill became. 105th Constitution Amendment Act 2021. It shall come into force on such date as the Central Govt may by notification in the official gazette appoint.

105th Amendment Amends Act 338-B and 342A to restore states power to make their own OBC lists annulling Supreme Court judgment of 5th May 2021 in Marathwada Reservation case.

Art. 338-B deals with the structure, duties & powers of NCBC and Art. 342A deals with the powers of the president to notify a particular caste as socially and educationally backward communities (SEBCs).

Members of Parliament have demanded that the 50% ceiling on quotas imposed by Supreme Court in Indira Sawhney case 1992 should be done away because the limit was imposed 30 years ago but the Supreme Court has repeatedly taken a stand that the cap should remain. The Indra Sawhney order spoke about breaching it but only in exceptional circumstances and for communities who are out of the mainstream.