April 10, 2017
Kalyan Banerjee speaks on National Commission for Backward Classes (Repeal) Bill, 2017 & 123rd Constitution Amendment Bill, 2017
Deputy Speaker Sir, I am obliged to you since you have given me the chance to speak on this subject. I would speak on a very limited field; the rest of the arena would be covered by my colleague Dasarath Tirkey.
I am raising a very important question today. Let us be clear – there is no problem in making reservations and with the setting up of the Commission for SCs, STs and OBCs. Whatever Dr Ambedkar has said, that is the first and final thing in our country; we accept that. I am not opposing Clause 1, Clause 2 and Clause 3, but I am opposing Clause 4, that is, insertion of Article 342 (1) of the Constitution of India.
Under Article 342 (1) of the Constitution of India, “the President may with respect to any State (or Union territory), and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes tribes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes tribes in relation to that State (or Union territory, as the case may be)”.
Therefore, today, by way of this Constitutional Amendment, the Central Government wants to take away all the powers of the State Government. The concept of OBC was thoroughly argued before a nine-judge Constitutional Bench in 1992. The case was Indra Sawhney & Others versus Union of India & Others, and the judgement was given by the judges with a ratio of six is to three.
In this case, the Supreme Court substantively said that, one, the State Government will identify the backward classes and the State Government will have the power to make reservations for the backward classes coming under the category of OBC. Therefore, the power of enacting the law by the State Government in identifying the backward classes has been entrusted by the Supreme Court under Article 141 of the Constitution of India to the State Governments.
Therefore the power of enacting the law and identifying the backward classes have been entrusted by the Supreme Court under the Article 141 of the Constitution of the India to the State Governments.
And after that what has happened?
This judgment was delivered on November 16, 1992. After the judgment was delivered almost all the State Governments in 1993 have enacted the law in respect of the backward classes.
There is a summary of the judgment in paragraph 323. There it has been said, “it is open to the State to adobe valid classification and makes special provisions for the protection of classes of citizens whose comparative backwardness, the state has a mandate to redress by affirmative action programs. Any such programme must be strictly adhered to the Constitution’s requirement that no citizen shall be excluded from being considered on the merits for any public employment except to the extend at a valid reservation have been made in favor of backward classes of citizen.”
If we read this, this power has been given by the Supreme Court to the States not to Government of India. Now in sub-paragraph 4 it has been said by the Supreme Court,
“In the case of the other backward classes’ citizens for whom we are talking now, qualified for reservation the burden is on the State to show that these classes have been subjected to such discrimination in the past that they are reduced to a state of helplessness, poverty and the consequences of social and educational backwardness in the case of SC and ST”.
Therefore these categorisations have to be made by the State Government which has been said by the nine judges’ bench of the Supreme Court.
Now, after that the Supreme Court has said at Clause 12 of that paragraph,
‘Whenever and wherever poverty and backwardness are identified, it is the constitutional responsibility of the State to initiate economic and other measures to ameliorate the conditions of the people residing in those regions’, but economic backwardness without mode does not justify reservation.”
Therefore Sir, this is not the law which has been drafted by the Parliament. This is a law which has shown, which has been inhabiting from the Supreme Court judgement and we are following it from 1993; all States are doing that. Now in view of this, in Article 16, sub-article 4, there is a constitutional amendment”
“Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
This empowers the State Government to make reservations for the other backward classes. This power is rested with the State Government. How such a power can be taken away today by an Amendment under Article 342 (A)? Therefore today the attempt on the part of the Government is to nullify the judgement ratio which has been let down in the Indira Sawhney case under Article 41 of the Constitution of India which is binding. Can it be nullified?
I am coming to the second part. Time and again this Government is trying to hit the federal structure of this country. Under the veil of the Constitutional amendment, statutory amendment and other things, they are hitting the federal structure of the Constitution. Are you hitting the basic structure of the Constitution? Nobody has the right to hit the basic structure of the Constitution.
Now Sir, I point out to you under Article 342 (A). What they are trying
“The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify”
What does consultation mean? It means, I will talk with you over telephone; we may agree or disagree and I will anyways pass on whatever is in my mind. This consultation is meaningless. Consultation must be effective.
Sir, why should the State Government has to depend upon the intricacies and the will of the Central Government? That is my question. I am questioning the way of bringing this Constitutional Amendment. Are they hitting the federal structure of the Constitution itself? Can you take away the power of the State Government? May be today you have a comfortable majority; may be, today you are leading in nine states. But what we are doing today is for our next generation. We have to give answers to them.
Therefore, Sir, as far as Article 342A, Clause (4) is concerned, I strongly object and I oppose it. I will be requesting all of my friends to oppose it tooth and nail otherwise we are betraying the Supreme Court judgement in the Indira Sawhney case.
Thank you Sir.