Article 338B

Article 338B of the Constitution of India establishes the National Commission for Backward Classes (NCBC) as a constitutional body to protect and promote the interests of socially and educationally backward classes (SEBCs). The insertion of this Article through the 102nd Constitutional Amendment Act, 2018, elevated the NCBC from a statutory to a constitutional status, placing it on par with the National Commissions for Scheduled Castes and Scheduled Tribes. It reflects India’s continuing effort to ensure social justice, equality of opportunity, and inclusive governance for all sections of society.

Historical Background and Evolution

The concept of identifying and protecting the interests of backward classes originates from India’s long struggle against social inequality and caste-based discrimination. Following independence, the Constitution empowered the State under Article 340 to appoint a Backward Classes Commission to investigate their conditions and recommend measures for advancement.
The First Backward Classes Commission (1953), headed by Kaka Kalelkar, and the Second Backward Classes Commission (1979), chaired by B.P. Mandal, laid the foundation for reservation policies for Other Backward Classes (OBCs).
In 1993, the National Commission for Backward Classes Act established the NCBC as a statutory body, primarily to examine requests for inclusion or exclusion of communities from the OBC list. However, following sustained demands for constitutional recognition and enhanced authority, the 102nd Amendment Act, 2018, inserted Article 338B, granting the NCBC constitutional status and wider powers.

Composition and Appointment

Under Article 338B(2), the NCBC consists of:

• A Chairperson,
• A Vice-Chairperson, and
• Three other Members.

All members of the Commission are appointed by the President of India by warrant under his hand and seal. The conditions of service, tenure, and other terms of office are determined by Parliament through legislation or rules framed thereunder.
This structure ensures a balance between executive appointment and parliamentary oversight, maintaining both independence and accountability.

Powers and Functions of the Commission

Article 338B(5) clearly enumerates the functions and duties of the National Commission for Backward Classes. These functions are comprehensive, encompassing both investigative and advisory roles:

• Investigation and Monitoring: To investigate and monitor all matters relating to the safeguards provided for socially and educationally backward classes under the Constitution and other laws, and to evaluate their effectiveness.
• Inquiry into Complaints: To inquire into specific complaints regarding the deprivation of rights and safeguards of backward classes.
• Advisory Role: To advise the Union and State Governments on major policy matters affecting the welfare and advancement of backward classes.
• Reporting: To present annual and special reports to the President of India on the working of safeguards and on measures required for their effective implementation.
• Recommendations: To make recommendations for measures that should be taken by the Union or any State for the protection, welfare, and development of socially and educationally backward classes.

Additionally, under Article 338B(8), the President may assign any other functions to the NCBC related to the protection and welfare of backward classes, thereby allowing flexibility in its role.

Powers Equivalent to a Civil Court

For the effective discharge of its functions, the NCBC has been vested with powers similar to those of a civil court under the Code of Civil Procedure, 1908. These powers include:

• Summoning and enforcing the attendance of persons and examining them on oath;
• Requiring the discovery and production of documents;
• Receiving evidence on affidavits;
• Requisitioning public records from any court or office;
• Issuing commissions for the examination of witnesses and documents;
• Exercising such other powers as may be prescribed by the President.

These quasi-judicial powers enable the Commission to conduct detailed investigations and inquiries with procedural authority and credibility.

Consultation Requirement

Under Article 338B(9), both the Union and State Governments are required to consult the NCBC on all major policy matters that affect socially and educationally backward classes. This ensures that government decisions and legislative measures are informed by expert advice and that the voices of the backward classes are represented in policymaking processes.

Reporting and Accountability Mechanism

The NCBC submits annual and special reports to the President of India. The President, in turn, lays these reports before Parliament, accompanied by a memorandum of action taken on the Commission’s recommendations.
When a report concerns a specific State, it is forwarded to the Governor, who presents it before the State Legislature, along with an explanation of the action taken or reasons for inaction. This two-tier reporting structure ensures transparency and legislative oversight at both central and state levels.

Relationship with Other Constitutional and Legal Provisions

Article 338B operates in conjunction with other constitutional provisions aimed at promoting equality and addressing social backwardness:

• Article 15(4) and 15(5): Permit the State to make special provisions for the advancement of socially and educationally backward classes in education and employment.
• Article 16(4): Allows reservation in public employment for any backward class inadequately represented in government services.
• Article 340: Authorises the President to appoint a Commission to investigate the conditions of backward classes.
• Article 342A: (Inserted by the same amendment) empowers the President to specify the socially and educationally backward classes for the purposes of the Central List.

Together, these provisions form a constitutional framework for affirmative action and equitable representation of backward classes.

Judicial Interpretations and Key Case Laws

The judiciary has played an instrumental role in shaping the principles underlying Article 338B and the functioning of the NCBC:

• Indra Sawhney v. Union of India (1992): The Supreme Court upheld the constitutional validity of reservations for backward classes and laid down the criteria for identifying OBCs. It also capped reservations at 50%, except in extraordinary circumstances, and mandated periodic review to exclude the “creamy layer”.
• M. Nagaraj v. Union of India (2006): The Court emphasised that affirmative action must be evidence-based and that the State must show quantifiable data on backwardness and inadequate representation.
• Jaishri Laxmanrao Patil v. Chief Minister of Maharashtra (2021): The Court interpreted the 102nd Amendment and held that the power to identify backward classes for the Central List rests exclusively with the President, while States retain the power to identify classes for their own purposes unless overridden by Parliament.

These rulings have clarified the constitutional boundaries of reservation policies and the scope of the NCBC’s role.

Significance and Impact of Article 338B

The inclusion of Article 338B marks a significant milestone in India’s pursuit of social justice and equitable development. Its significance lies in several key areas:

• It provides constitutional legitimacy to the NCBC, strengthening its authority and permanence.
• It ensures continuous monitoring of the implementation of safeguards for backward classes.
• It institutionalises consultation and participation of backward classes in policymaking.
• It enhances the accountability of the government by requiring annual reporting and parliamentary review.

The NCBC thus acts as both a protector of rights and a policy advisor, bridging the gap between constitutional ideals and administrative realities.

Challenges in Implementation

Despite its constitutional status, the NCBC faces several challenges in fulfilling its mandate effectively:

• Limited enforcement power: The Commission’s recommendations are advisory in nature and not legally binding.
• Coordination issues: Overlapping jurisdiction between the Centre and States sometimes delays the implementation of welfare schemes.
• Data inadequacy: Lack of updated socio-economic data hampers accurate identification of backward classes.
• Political and administrative inertia: Delayed action on reports and inadequate follow-up on recommendations reduce the impact of the Commission’s work.

Addressing these challenges through institutional strengthening and greater autonomy remains essential for improving its effectiveness.

Future Directions and Contemporary Relevance

In recent years, discussions have centred on expanding the NCBC’s scope to cover monitoring of welfare schemes, review of reservation efficiency, and research on backward class development indicators. Strengthening its powers, particularly in enforcement and data collection, is seen as vital to realising its full constitutional potential.
The NCBC continues to play an important role in the evaluation of reservations in education and employment, ensuring non-exclusion of legitimate beneficiaries, and guiding the government on policy reforms for social inclusion.