The Bill to establish a National Commission for the Backward Classes cannot be sent to the president because different versions were passed in the two houses. But how did this happen?
On Monday, July 31, 2017, the NDA government brought for passage in the Rajya Sabha, the Constitution (One Hundred and Twenty-Third Amendment) Bill, 2017 to establish a National Commission for the Backward Classes (NCBC). This is a body similar to the National Commissions for the Scheduled Castes and Scheduled Tribes, which were established by the UPA government in 2004.
The Rajya Sabha, demonstrating the depth of support for the NCBC across party lines, passed the constitutional amendment unanimously, after Clause 3 (dealing with the constitution of the NCBC) was dropped, following the opposition’s successful effort to pass four amendments to this clause. However, the Bill cannot be sent now to the president for his assent since the Lok Sabha and Rajya Sabha versions are no longer identical.
This impasse has led to allegations that the Upper House undermined a crucial move that affects more than half the population of India. Some important questions need to be considered here to separate the spin from the facts:
- Were the amendments (27-30) moved by the opposition appropriate?
- Was there any lacuna in the government’s floor management strategy?
- Was there any other way to arrive at a consensus instead of the current situation?
Specifically, the key amendments moved by Congress MPs Digvijaya Singh, B.K. Hariprasad and Husain Dalwai, who were also members of the Select Committee that examined the Bill, expanded the size of the commission from three other members to five. The amendment mandated that these five members should necessarily belong to the backward classes. Of these “one shall be a woman and one at least shall be from minority community.” Other amendments passed ensured that states would be able to participate and advise on who should be included or excluded from the list of socially and educationally backward classes. This was necessitated since a combined reading of Article 342A and 366(26c) makes it clear that once the 123rd amendment passes, only the Union government can determine whether a caste is socially and educationally backward or not. There is no language in the Bill to ensure that the president is bound to take into account the opinion of the governor.
Speaking for the amendment’s proponents, Singh made it clear that their sole aim was to strengthen the Bill and ensure a more representative commission. The rationale in support of an extended panel and for the mandatory inclusion of a woman and minority members makes sense in the context of a Backward Classes Commission, because of the complexity and diversity of backward classes across the country. For example, the washermen communities in parts of South India are classified as OBCs, but are recognised as Scheduled Castes in some parts of North India. In Madhya Pradesh, Meenas are classified as OBC, whereas in neighbouring Rajasthan they are notified as Scheduled Tribes. Thus, it is an extremely challenging exercise to identify backward classes accurately. It cannot be done in a just manner without a more diverse commission that also ensures adequate participation from the states, who have better insights on the local context. Mandating the inclusion of women and minorities ensures that gender perspectives and the views of often neglected groups are addressed.
The counterargument put forth by the leader of the House, Arun Jaitley, was that the membership provisions were the same as those contained in the Acts establishing the SC and ST Commission. And also, that the details of the commission’s membership were contained in the rules framed under those Acts. However, this would be difficult in practice, as trying to ensure minority and women’s representation in a three-member panel is harder than with a five-member panel. Similarly, arguing that what sufficed in 2004 should also suffice in 2017 represents holding on to a static view of representation and does not reflect the differing circumstances which characterise the backward classes (for example, the concepts like “creamy layer” are applied only in the context of backward classes). Thus, each of the amendments is reasonable and in fact strengthens the legislation.
When we talk of the government’s floor strategy, it is important to set in context the timeline of events. The Bill was introduced in the Lok Sabha on the April 5, 2017 and first discussed on April 6. Bhartruhari Mahtab (BJD) instantly objected to how the government brought up the Bill on a Thursday evening as supplementary agenda, when the initial understanding was that it would be discussed on Friday, allowing enough time for MPs to move amendments. He also raised the issue of the federal structure being challenged by the proposed form of the NCBC, as highlighted earlier.
K.C. Venugopal (from the Congress) asked for the Bill to be sent to the Standing Committee for further scrutiny. Both Mahtab and the leader of the Congress in the House, Mallikarjun Kharge, supported this demand. However, the government did not accede to this justifiable demand. The opposition was well within its rights to demand more time for deliberation to discuss threadbare a very important legislation. Instead, the Bill was discussed for less than two days and passed on April 10, with strong reservations from many members of the House. Moreover, none of their amendments were accepted.
As soon as the Bill passed in the Lok Sabha, it was introduced in the Rajya Sabha. The opposition’s numbers in this House ensured that the Bill was sent to a Select Committee, which was constituted immediately with Bhupender Yadav (from the BJP) as the chairman. The Select Committee, with members drawn from across party lines, submitted its report on July 19, 2017. The amendments made by the Congress members of the Select Committee were set aside by the committee chairman in view of an assurance from the NDA minister to include these while framing the rules of the legislation.
Unfortunately, there has been a history of this government going back on its assurances not only to committees, but also on the floor of the House. This is in addition to introducing key legislation through stealth, such as the Finance Bill, 2017 or classifying bills as money bills to bypass the Rajya Sabha. In my personal experience, building on my dissent note as a member of the Select Committee on the Real Estate Regulation Bill, I moved an amendment to the Bill that would include an anti-discrimination clause. The minister, Venkaiah Naidu, assured me on the floor of the House that he would ensure that the clause would be included in the rules of the Act. In good faith, I withdrew the amendment. When the rules were eventually framed, I learnt that the anti-discrimination clause has been whittled down and I have formally protested through a special mention. Such experiences make it harder for us in the opposition to trust the assurances from the treasury benches.
As it turned out, when the combined opposition insisted on moving our amendments, they were passed with a simple majority and there was no going back. This was made easier by the fact that many NDA MPs, including half a dozen ministers, were absent from the House, despite a three-line whip and Prime Minister Narendra Modi’s instructions to attend parliament regularly. The government asked the chair to adjourn the House to facilitate some interaction with the opposition. In an unprecedented move, right in the middle of voting, the chair suspended proceedings for 10-15 minutes to allow for consultations. At this stage, the government could have voted for the amended Clause 3, and passed the Bill in its entirety with a two-thirds majority. But they insisted on defeating the progressive amendments, which has led to the current impasse.
When legislation does not go through, the buck stops with the government. All parties unanimously want a strong and inclusive Backward Classes Commission with constitutional status. We want to establish it quickly. But to do so, the the government must learn to respect the role of a constructive opposition by allowing for detailed debates, deliberations and constructive compromises in committees and in parliament. The government must work to eliminate the trust deficit that has crept in and work with the opposition to strengthen our legislature.
M.V. Rajeev Gowda is chairman, AICC Research Department, and Rajya Sabha MP from Karnataka.