The National Commission for Backward Classes

Clause (2). Subject to any law made by Parliament, it shall consist of a Chairperson, Vice-Chairperson and three other Members, whose conditions of service and tenure the President may by rule determine.

Clause (3). They shall be appointed by the President by warrant under his hand and seal.

Clause (4). The Commission shall have the power to regulate its own procedure.

Clause (5): the duties.

(a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under the Constitution, under any law, or under any order of the Government, and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards;

(c) to participate and advise on the socio economic development of those classes and to evaluate the progress of their development under the Union and any State;

(d) to present reports to the President annually and at such other times as it thinks fit, upon the working of those safeguards;

(e) to make in such reports recommendations as to the measures to be taken by the Union or any State for the effective implementation of the safeguards and for the protection, welfare and socio economic development of those classes; and

(f) to discharge such other functions as the President may, subject to any law made by Parliament, by rule specify.

The remaining clauses, following the pattern of articles 338 and 338A, provide that the reports shall be laid before each House of Parliament with a memorandum explaining the action taken on the recommendations and the reasons for the non acceptance of any of them; that where a report relates to a State it shall be sent to the Governor and laid before the State Legislature with a like memorandum; that the Commission shall have, while investigating a matter or inquiring into a complaint, all the powers of a civil court trying a suit; and that the Union and every State Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes.

Article 342A and the two amendments

As inserted in 2018. Clause (1) empowered the President, with respect to any State or Union territory and, in the case of a State, after consultation with the Governor, by public notification to specify the socially and educationally backward classes deemed to be such in relation to that State or territory; and clause (2) provided that Parliament may by law include in or exclude from the list any class, but save as aforesaid a notification shall not be varied by any subsequent notification.

That is the same architecture as articles 341 and 342 for the Scheduled Castes and Scheduled Tribes: a Presidential notification, alterable only by Parliament.

The problem it created. The Amendment was construed as having taken away the power of a State to identify its own backward classes for its own purposes, since the article spoke of a single list specified by the President and alterable only by Parliament.

The 105th Amendment 2021. It amended clause (1) so that the President specifies the classes in the Central List, which shall for the purposes of the Central Government be deemed to be socially and educationally backward; added an Explanation defining the Central List as the list prepared and maintained by and for the Central Government; and inserted clause (3), that notwithstanding clauses (1) and (2), every State and Union territory may by law prepare and maintain, for its own purposes, a list of socially and educationally backward classes, which may be different from the Central List.

So the position today is two lists. A Central List, specified by the President and alterable only by Parliament, governing benefits under the Central Government; and a State list, prepared and maintained by the State by law for its own purposes.

A student must state this correctly. The commonest error is to write that the 102nd Amendment took away the States' power, without adding that the 105th restored it.

The three Commissions compared

The last row is the only difference of substance, and it exists because of the 105th Amendment.

A worked example

A community is included in a State's list of backward classes but not in the Central List. A member of it applies for a post in the service of the Union and for a seat in a State institution.

The Union post? The Central List governs benefits for the purposes of the Central Government, and the community is not in it, so the reservation is unavailable.

The State institution? The State's own list, prepared and maintained by law under article 342A(3), governs for the State's purposes.

Can the State add the community to the Central List? No. Only Parliament by law may include in or exclude from the Central List.

Could the State have done this between 2018 and 2021? That was precisely the difficulty the 105th Amendment resolved; before it, article 342A as inserted in 2018 was read as leaving a single list.

Where does the community complain of over inclusion or exclusion? To the National Commission for Backward Classes under article 338B(5)(b), which inquires into specific complaints regarding the deprivation of rights and safeguards.

And is the creamy layer excluded? Yes, on Indra Sawhney, by the fixation of proper income, property or status criteria.

What it does NOT mean

The Commission does not decide who is backward. It investigates, monitors, advises and reports; the lists are matters for the President, Parliament and, for their own purposes, the States.

Article 340 was not repealed. The power to appoint an ad hoc Commission of inquiry remains.

Its recommendations are not binding. The sanction is the laying of the report before Parliament or the State Legislature with a memorandum on the action taken and the reasons for non acceptance.

And the Central List is not the only list. Since 2021 every State and Union territory may by law maintain its own.

Quick revision

• Art 340: the President may appoint an ad hoc Commission to investigate the conditions of socially and educationally backward classes and to recommend steps and grants.
• Statutory Commission from 1993, following Indra Sawhney v. Union of India, AIR 1993 SC 477.
• Art 338B, inserted by the 102nd Amendment with effect from 15 August 2018: a Chairperson, Vice-Chairperson and three Members appointed by the President by warrant; power to regulate its own procedure; duties to investigate and monitor safeguards, inquire into complaints, advise on socio economic development, report annually to the President and recommend measures; reports laid before Parliament or the State Legislature with a memorandum on action taken and reasons for non acceptance; civil court powers while investigating; and consultation on major policy matters.
• Art 342A: the President specifies the socially and educationally backward classes in the Central List, alterable only by Parliament by law; and by clause (3), inserted by the 105th Amendment 2021, every State and Union territory may by law prepare and maintain its own list for its own purposes.
• Two lists today, and it is wrong to say that the States lost the power without adding that it was restored in 2021.

Test yourself

1. What is the difference between article 340 and article 338B? Article 340 empowers the President to appoint an ad hoc Commission of inquiry into the conditions of socially and educationally backward classes; article 338B establishes a standing constitutional Commission with continuing duties of investigation, monitoring, complaint inquiry, advice and annual reporting.

2. State the composition and the manner of appointment under article 338B. A Chairperson, a Vice-Chairperson and three other Members, subject to any law made by Parliament, appointed by the President by warrant under his hand and seal, with conditions of service and tenure determined by the President by rule.

3. What did the 102nd Amendment do, and what problem did it create? It inserted articles 338B and 342A, giving the Commission constitutional status and providing for a list of socially and educationally backward classes specified by Presidential notification and alterable only by Parliament; the problem was that this was read as leaving a single list and depriving a State of the power to identify backward classes for its own purposes.

4. How was that problem resolved? By the Constitution (One Hundred and Fifth Amendment) Act 2021, which confined the Presidential notification to the Central List for the purposes of the Central Government, added an Explanation defining the Central List, and inserted clause (3) permitting every State and Union territory to prepare and maintain its own list by law for its own purposes.

5. What is the sanction behind the Commission's recommendations? That its reports are laid before each House of Parliament, and where they relate to a State before the State Legislature, together with a memorandum explaining the action taken on the recommendations and the reasons for the non acceptance of any of them.