Constitution (123rd Amendment) Bill: The Controversy

Context

The Constitution (123^rd Amendment) Bill has brought controversy over whether it amounts to encroaching on the domain of the States.

 All you need to know about the Constitution (123^rd Amendment) Bill

• In April, 2017, the Constitution (123rd Amendment) Bill was introduced in the Lok Sabha by The Minister of Social Justice and Empowerment, Mr. Tharwarchand Ghelot.
• The Bill was introduced alongside the National Commission for Backward Classes (Repeal) Bill, 2017.
• The Constitution (123rd Amendment) Bill, 2017 seeks to grant the National Commission on Backward Classes (NCBC) constitutional status by inserting anew article 338 B in the Constitution
• National Commission for Scheduled Castes (NCSC) had the power to look into complaints and welfare measures with regard to Scheduled Castes, backward classes and Anglo-Indians.
• The proposed commission will have a chairperson, vice-chairperson and three other members and hear the grievances of socially and educationally backward classes, a function discharged so far by the NCSC
• Further, the Bill seeks to establish the NCBC under the Constitution (Article 338B), and provide it the authority to examine complaints and welfare measures regarding socially and educationally backward classes.
• The Constitution Amendment Bill states that the President may specify the socially and educationally backward classes in the various states and union territories (Article 342-A).  The President may do this in consultation with the Governor of the concerned state.  However, a law of Parliament will be required if the list of backward classes is to be amended.

Significance of the Bill

National Commission for Backward Classes with constitutional status at par with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes is expected to safeguard the interests of socially and educationally backward classes more effectively.

Controversy over the Bill

• The Constitution (123^rd Amendment) 2017, has been largely appreciated but also raises anxieties.
• Several opposition parties are of the opinion that if enacted, the bill would undermine federalism, as it may lead to usurping the State government’s power to prepare their own BC list.
• A clause in the 123rd Amendment states that 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 anxieties that the Centre is taking over the function of inclusion and exclusion of communities from the ‘Backward Classes’ list.
• A 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, in its judgement, in E.V. Chinnaiah vs. Andhra Pradesh case (2004), had directed 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.

Way ahead

• The central government has attempted to alleviate these anxieties.
• The Center has remarked that the powers of the State would remain unaffected. The list for every State will be prepared only in consultation with the State government.