Such opportunities are rare when both the ruling party and the opposition come together on an issue, but they become essential when it comes to maintaining social justice and the federal structure. This was why there were no votes against the 105th Constitutional Amendment.

During the debate, issues like the caste-based census, reservations in the private sector, and the demand to remove the 50% cap on reservations were raised. References to the Kaka Kalelkar Commission, the Mandal Commission, and the Supreme Court's judgment in the Indira Sahani case were frequently mentioned. Opposition party members supported the bill but alleged that it was brought to correct the mistakes of the 102nd Constitutional Amendment. The ruling party asserted that the government's intent regarding the OBC state list and the central list has always been clear, with no ambiguity from the standing committee to the house. Central Social Justice and Empowerment Minister Dr. Virendra Kumar stated that this bill would empower states to make decisions regarding the OBC state list.

The central government prepared separate OBC lists for states and included 2,515 castes in the central list. Many castes in the lists of states and union territories are included in the central OBC list as part of the 105th Constitutional Amendment Bill. Approximately 671 OBC communities benefit from reservations in educational institutions and government jobs. Dr. Kumar detailed the purpose and objectives of bringing the constitutional amendment bill to the house while proposing discussions first in the Lok Sabha and then in the Rajya Sabha.

On May 5, 2021, the Supreme Court declared the reservation for the Maratha community in Maharashtra in government jobs and educational institutions unconstitutional. It also stated that the 102nd Constitutional Amendment Act of 2018, which conferred constitutional status to the National Backward Classes Commission, invalidated the state's power to identify OBCs. A five-judge constitutional bench headed by Justice Ashok Bhushan stated that states can only identify such castes and recommend them to the centre. The central government disagreed with the Supreme Court's interpretation and filed a review petition against the decision. However, the court rejected the central government's argument and dismissed the review petition.

Following this, the central government chose to restore the state's rights through Parliament. On August 4, a cabinet meeting chaired by Prime Minister Narendra Modi approved the related amendment bill, stating that it was necessary to maintain the country's federal structure. The 105th Constitutional Amendment Bill was introduced on August 9, 2021, and after long discussions, it was passed by the Lok Sabha on August 10 and by the Rajya Sabha on August 11, 2021.

The ruling party stated that the Narendra Modi government is committed to ensuring rights for even the most marginalized individuals. The government granted constitutional status to the OBC Commission and also provided reservations for OBCs and EWS in the NEET examination for admissions to medical colleges.

When ruling party MPs raised the issue of the caste-based census, they questioned the policies and intentions of Congress governments, while coalition partners like JDU stated that backward castes have the right to know their numbers. In the Rajya Sabha, ruling party MPs asked why the recommendations of the Kaka Kalelkar Commission and the Mandal Commission were not implemented during the Congress tenure.

In both houses, opposition MPs demanded a caste-based census and the removal of the 50% cap on reservations. During the discussions, it was also mentioned that the caste-based census should gather information on education, housing, and other aspects to formulate appropriate policies. In India, the caste-based census was conducted in 1971, which formed the basis for the Mandal Commission's recommendation of 27% reservation for OBCs. From 1951 to 2011, censuses only conducted social, economic, and caste censuses within the Scheduled Castes and Scheduled Tribes cells, but no reports were recorded.

In addition to the caste census, another major demand from opposition parties is the removal of the 50% cap on reservations. While the 50% cap on reservations is not established by any law or primary act, the Supreme Court ruled in the Indira Sahani case in November 1992 that the quota of reserved seats should not exceed 50%. It was also stated that in extraordinary circumstances, the cap on reservations could be increased. During the discussion, Central Minister Dharmendra Pradhan clarified the government's stance on this matter.

In Tamil Nadu, there is a provision for 69% reservation in government jobs and educational institutions. During discussions in the upper house, this team demanded to maintain that provision. Some opposition parties, including Congress, also raised the issue of implementing reservations in the private sector and filling backlog vacancies. There was also a conflict between the ruling party and the opposition regarding vacant OBC quota positions in universities and other institutions.

TRS demanded reservations for OBCs in the legislature and a separate ministry for OBCs. AIMIM stated that OBCs listed in the state list should also be included in the central list. CPM MP requested the centre to review the criteria for obtaining reservations under the provisions.

While the commitments, opinions, and demands of the parties may differ, the key point was that there was no opposition to the 105th Constitutional Amendment. In about eight hours of discussion, 48 members participated, and in the Rajya Sabha, members took part for more than five and a half hours. Social Justice and Empowerment Minister Dr. Virendra Kumar responded to the discussion in the Lok Sabha on August 10 and in the Rajya Sabha on August 11.

Regarding the caste census issue, the central social justice and empowerment minister stated that the data from the 2011 social and economic census was filled with complexities. After extensive discussions, the Bill received parliamentary approval as the 105th Constitutional Amendment. This also restored the rights of states and union territories to identify and list socially and educationally backward classes. Additionally, the requirement for state governments to consult with the NCBC in decision-making on this matter has been removed.

Now, the president can notify the central list of SC-OBCs solely for the central government. After parliamentary approval, Prime Minister Narendra Modi described it as a historic moment for the country. He stated that it demonstrates the government's commitment to ensuring equal opportunities and justice for marginalized communities. This constitutional amendment will not only empower states regarding the OBC state list and decision-making but will also significantly contribute to protecting the country's federal structure. It will ensure the proper implementation of benefits granted for education and policies for the OBC population across the country, while also providing states with opportunities to act swiftly concerning their social and economic needs.

This is the ninth part of a series. The first part can be read here, the second part here, the third part here, the fourth here, the fifth here, the sixth part here, the seventh part here and the eighth part here.

Author is an Advocate practicing in the High Court of Bombay.


[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]

Siddharth Desai