On 31 July, in the Rajya Sabha, the ruling Bharatiya Janata Party dropped a key clause in a constitutional amendment bill that would confer constitutional status to the National Commission for Backward Classes (NCBC) because of an amendment moved by the opposition parties. The opposition moved an amendment to the composition and function of the commission, leaving the government with the choice to either accept the amended clause or drop the clause entirely from the bill. Although several opposition members of the Rajya Sabha expressed their support for constituting a constitutional body for backward classes, they also argued that the bill diluted the powers of the existing commission and the role of state governments. The NCBC already existed as a statutory body, but the proposed bill would constitute a new commission that would have the status of a constitutional body—on par with the National Commission for Scheduled Castes and National Commission for Scheduled Tribes. In an unprecedented vote that effectively rendered the bill redundant, the Rajya Sabha passed the bill without the clause constituting the commission.
The criticism of the bill, like the support for granting the commission constitutional status, cut across party lines. Nadimul Haque of the Trinamool Congress noted that the commission would be “wholly unequipped to identify classes that are in need of special protection by the state.” He added that conferring the constitutional status on the commission “must not come at the cost of introducing anti-federal elements in our Constitution.” D Raja, a member of the Communist Party of India, argued that the bill did not give sufficient powers to the commission and questioned the motives of the government in introducing the bill. “Are we only doing lip service to these sections? Is it to hoodwink these sections for political advantage or electoral advantage?” Raja asked.
The Constitution (One Hundred and Twenty Third) Amendment Bill, 2017 was passed in the Lok Sabha on 10 April, 2017. The next day, the government attempted to , but opposition members of parliament resisted. Some opposition MPs, such as Naresh Agrawal of the Samajwadi Party, argued that they needed more time to move amendments. Several members, including the leader of the opposition Ghulam Nabi Azad, said that, during informal discussions outside the house, members of parliament from the ruling party had agreed to refer the bill to a select committee for examination. Mukhtar Abbas Naqvi, the minister of state for parliamentary affairs, insisted that he had only heard the opposition members’ requests to send the bill to a select committee, but had not agreed to do so. At the end of the day’s discussion, the government relented and referred the bill to a select committee.
The committee, which comprised of 25 members from different political parties, submitted its report on 19 July. Despite several amendments proposed by its members as well as two notes of dissent from four members—by Sukhendu Sekhar Roy of the TMC, and a second collectively submitted by Digvijaya Singh, BK Hariprasad, and Husain Dalwai, of the Congress—the report recommended that the bill be passed without any amendments. (Disclosure: I am currently assisting Dalwai, as a researcher.) These dissent notes were included in the report, however. It noted that the bill would “strengthen affirmative action in favour of socially and educationally backward classes as well as further boost concept of cooperative federalism between the Centre and States.” Contrastingly, Roy’s dissent note stated that the bill appeared to be “against the spirit of co-operative federalism” and that it would “undermine the role of State Governments and the State Commissions for Backward Classes.” The note by the Congress members proposed amendments to the bill that addressed the same concerns, among others, as those of Roy.
An examination of the present procedure governing the NCBC illuminates the concerns raised in the dissent notes. The NCBC was established as a statutory body in 1992, in compliance with Supreme Court’s judgment in the case of Indra Sawhney vs Union of India. The Supreme Court directed all state and central governments to set up expert, impartial bodies to advise the government on inclusion or exclusion of communities from the backward-classes list, and to look into complaints of over- or under-inclusion. The court also directed that the “advice tendered by such body shall ordinarily be binding upon the Government” and that the government must record its reasons in writing if it chose not to accept the advice.