This article is written by Shobhna Aggarwal, currently pursuing B.Com LLB from Banasthali Vidyapith. This article deals with the provisions mentioned in the National Commission for Backward Classes Act, 1993. It aims to make a better understanding of all the powers and functions vested within NCBC.
National Commission for Backward classes (NCBC), 1993, recognized as a constitutional body under the 123rd Amendment Bill, 2017 and 102nd Constitutional Amendment Act, 2018 which inserted Article 338b in the Constitution of India. It was passed by the two-third majority as the 102nd Constitutional Amendment Act, 2018. The NCBC Act was passed in 1993 for the category of backward classes.
The first backward class commission was pointed on January 29, 1953, known as Kaka Kalelkar Commission. The central government was not satisfied with the approach adopted by the commission in determining the criteria for identifying the backward classes.
On January 1, 1979, the president appointed another backward classes commission known as The Mandal Commission with Shri B.P. Mandal as its chairperson.
In 1987, an executive body was instituted as a national commission for SCs and STs after that in 1990, 65th amendment was introduced which added Article 338 in the Constitution and made a national commission for SCs & STs as a constitutional body.
After that, the concept of making a national commission for backward classes was introduced in the landmark case Indra Sawhney & Ors. Vs. Union of India, 1992 where the supreme court stated that there should be a permanent body for the backward classes which the government itself shall constitute, and therefore parliament made a statutory body by the act as National Commission for Backward Classes, 1993 under India’s Ministry Of Social Justice And Empowerment established on 14 August 1993, so initially it was only a statutory body but later on in 2003 when 89th Constitutional Amendment Act came which added Article 338a in the Constitution and made a difference and a constitutional body for schedule tribes as national commission for the scheduled tribe and in the same year it was mentioned that matter related to other backward classes would be seen by the national commission for scheduled caste only, but it created huge chaos, and backward classes category too wanted to have it’s different and a separate one and a constitutional body for themselves
So in 2017 only, parliament announces the 123rd Amendment Bill, for the backward classes to make it a constitutional body and named it a national commission for the socially and backward classes but after this announcement only, there was a big opposition which was made by the regional party that ruling party is trying to suppress and differentiate the people so in August, 2018 only, parliament passed the 123rd Amendment Bill, 2017 and 102nd Amendment Act, 2018 which made a national commission for backward classes NCBC as a constitutional body and added Article 338b in the Constitution for the commission of backward classes.
The organizational setup for the national commission for backward classes shall be consist of five members, who all are nominated by the central government, including a chairperson who is or has been a judge of the supreme court or a high court, another two persons having a piece of special knowledge about the matters related to the backward classes, a social scientist, and a member secretary who is or has been appointed as a secretary for the government of India.
The Constitution of India provides many provisions to uphold and to maintain the social, political & economical differences between the backward classes and the categories of the nation, and therefore the Constitution enacted some of the provisions which are related to the backward classes like Article 15, 16 Article 340, Article 338b.
Article 15(4) and (5) are special provisions for backward classes as it states that the state has the full power to make any special provision for the advancement and upliftment of any socially and educationally backward classes of citizens or the scheduled tribes and scheduled castes. This clause was added by the Constitution by the First Amendment Act, 1951 as from the very ancient time we are facing the problem of this gap between the upper and lowers class, the richer and poor class, the literate and the illiterate class, therefore it was pretty much needed to have some extra clauses or some extra special provisions for them. The expression that is included in the provision may include reservation but many more things too such as financial assistance, free medical, educational, or hostel facilities, transport, and others too.
Article 16(4) too talks about the extra benefit that should be given to these backward classes people in the matter of reservation for the appointments or posts under the services of the state. This clause stated that the state has the power to enact any special provision for reserving seats, posts, or appointments for the backward classes.
Article 340 provides a commission for the backward classes to investigate, evaluate the problems and difficulties faced by them and the commission shall be appointed by the president himself. And once the commission has been formed then they have to look after this backward class category and if found any such situation they have to report it to the president and then the president shall present that problem before both the house of parliament.
Article 338b of the Indian Constitution states that there shall be a commission for the backward classes known as NCBC and it also contains the composition of the NCBC in it. The article defines the procedure of appointing the members of the commission and their duties to be performed by them.
- Chapter III of the NCBC Act, 1993 the provisions providing powers and functions of the commission. The chapter contains three sections. Section 9-11 elucidating powers and functions given to the commission.
- Sections 9 states the function of the commission as to examine the request made for the inclusion of any category as a backward class or to investigate the conditions or problems faced by the category under inclusion and then tender such advice to the central government. The nature of that advice is ordinarily binding on the central government.
- Section 10 provides the powers of the commission while performing their duty under section 9(1) of the NCBC Act, 1993 as the commission has the power to act as a civil court and has all the power as a civil court while summoning any person or their attendance, requiring the discovery of any evidence, receiving evidence on affidavits and issuing any commission for examining any witness or any other as may be prescribed.
Indra Sawhney V. Union Of India (AIR 1993 SC 477)
This case is also known as the Mandal Commission Case. Whereas the bench of Nine-Judge was formed and gave their following essential points.
- Article 16(4) is exhaustive which can be used in employment for backward classes.
- Reservation should not exceed 50% of the total.
- Backward classes in Article 16(4) are not likely the same as in Article 15(4).
- The distinguishing factor will not wholly depend on the financial criteria for the Backward classes citizens.
- The provision could also be made by Executive order rather than made by the parliament or legislature.
- The state must comply with the power conferred under Article 16(4) for the benefit of Backward classes.
- The court also favoured the move of the government and said that there must be an exclusion of the creamy layer among OBCs so that the weaker section of OBCs may get the benefits.
- The court also asked the Central government to fix certain norms to distinguish weaker sections of OBCs from the creamy layer of OBCs. The creamy layer was Rs. 1 lakh in 1993, Rs. 2.5 lakhs in 2004, Rs. 4.5 lakhs in 2008, Rs. 6 lakhs in 2013, and since 2017 its Rs. 8 lakh.
M.R. Balaji and Ors. V. State of Mysore  Suppl. 1 S.C.R. 439
In this case, the Bench of five-judge of the Supreme Court struck down the said order and gave essential points.
- Under Article 15(4) the main purpose is to maintain a reasonable purpose and not defeat the Rule of equality which is mentioned under Clause(1).
- To define the exact percentage of reservation is slightly difficult so there must be no excess of reservation, say no more than 50%.
- The provision could also be made by Executive order rather than made by Legislation.
- The very purpose of Article 15(4) is the advancement of socially or educationally backward classes of citizens.
- There is no necessity for future categorizing backward classes under Article 15(4).
Ram Singh and Ors V. Union Of India
The Supreme Court, in this case, overturned the decision of the government as stated that the report dated 26.02.2014 by NCBC was a detailed one as it had considered the various reports of the State Backward Classes Commission. As well as the Expert Committee by ICSSR (Indian Council of Social Science Research). The court also stated that NCBC must have overplayed or overstressed parts of the said matter. Moreover, the government contention that the Jats were on the state List of eight out of nine was also rejected by the court. Stating the list was made more than a decade ago, and the decision or any important judgment was grave which impacted the rights of many under Articles 14 and 16 of the Indian Constitution.
The court also quoted that though caste may be the factor to distinguish from social backwardness herein the court discourages the caste factor the distinguish as socially backward class. Article 15(4) and 16(4) lays some of the affirmations for the state to reach out to the deserving one.
NALSA V. Union of India AIR (2014) 5 SCC 438
In this landmark judgment, the court directed the Central government to treat all the transgender as socially and educationally backward classes and provide them with proper education as well as employment which all are provided to the OBCs excluding the creamy layer.
The very first Commission which was formed back in 1950 was Kaka Kalekar and then in 1970 B.P. Mandal. These two commissions were for the benefit of Backward Classes. After the Mandal Commission Case, the court directed the government to create a separate body for inclusion and exclusion of various backward classes for benefit and protection. To this, the parliament passes the National Commission for Backward Classes Act, 1993. The main purpose of this act is to safeguard the interest of the socially and educationally backward class and to provide them with proper protection and care.
Soon after the enactment of NCBC,1993 as a statutory act it became a constitutional one in the year 2018 by the 102nd Amendment Act, 2018 which was the greatest lead and achievement for the upliftment of the socially and educationally backward classes.
So in my perspective, the aim of achieving a permanent constitutional body of NCBC is one of the main objectives for having equal status in the society for this backward class category and further improvements will be provided by this commission will be a source for the next goal in the aim.
When I critically analyze the current situation and the ancient situation of the backward class or the provisions of the acts or commission for these categories, I come to a point that a building can be built in a day, everything takes time for its betterment a fetus takes almost 9 months to grow into an infant so our government also need time to make all the people in respect of their social, educational, and economical status to be equal. The government had been providing us with the special provision as well as the commission for this purpose, but we have to abide by them as well. We are the people for whom these provisions have been made and we shall follow them as not to discriminate against anyone or to give equal respect and love to this human nature.
- Every citizen of this country must follow the rules and regulations made by the government and at the same time make others aware of their rights, duties, and liabilities towards each other as well as towards our nation which is based on humankind too.
- On the second point, the commission should be more transparent, effective, responsible, answerable to the people for whose benefit this commission was made. The aim of the commission should be the upliftment of the socially and educationally backward classes nothing else shall be their motive.
The NCBC Act laid down the remedy for the socially and educationally backward class citizens. The need for the commission was formed to maintain equality and peace among the citizens of India. Some backward class citizens don’t have any idea about their rights and what benefit they can get because there are some though backward class but are with the creamy layer which means they are advanced educationally and socially because of them the real backward class citizens left out. The Act’s purpose is to maintain the inclusion and exclusion of these types of citizens.
When the Act became a constitutional status, the more transparency or say more rights were generated for the backward class citizens. The main thing which benefited the backward class citizens after the constitutional status is that before constitutional status the recommendation of the commission was not binding on the government. Whereas after the constitutional status the commission has the power equivalent to the civil court and now the power to even investigate the complaints.
There’s a plus point in giving a constitutional status but only a constitutional status will not help the socially backward class citizens to grow, the government should publicize the social backward census and even the government should not think of the backward class just as a mere vote bank instead the real aim must be to educate them to give them social justice.
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