One Hundred and Second Amendment of the Constitution of India

The One Hundred and Second Amendment of the Constitution of India, officially known as The Constitution (One Hundred and Second Amendment) Act, 2018, conferred constitutional status on the National Commission for Backward Classes (NCBC). Enacted on 11 August 2018, the amendment empowered the NCBC to function as a constitutional body under Article 338B, similar to the National Commissions for Scheduled Castes and Scheduled Tribes.
The amendment was a significant step in strengthening the institutional framework for protecting the interests and rights of the socially and educationally backward classes (SEBCs), often referred to as Other Backward Classes (OBCs), and ensuring their greater participation in public life through legal and administrative safeguards.

Background

The National Commission for Backward Classes (NCBC) was originally constituted in 1993 under the National Commission for Backward Classes Act, 1993 (Act No. 27 of 1993) following the recommendations of the Mandal Commission and the implementation of OBC reservations by the V. P. Singh Government in 1990.
However, since it functioned as a statutory body, it lacked constitutional authority comparable to the National Commission for Scheduled Castes (Article 338) and National Commission for Scheduled Tribes (Article 338A). As a result, its recommendations on inclusion or exclusion of communities from the OBC list, and its role in addressing grievances of backward classes, were often advisory and not binding.
To address this institutional imbalance, the Government of India introduced a Constitutional Amendment Bill to elevate the NCBC to the status of a constitutional body, thereby ensuring greater autonomy, authority, and permanence.

Legislative History

The Constitution (One Hundred and Twenty-third Amendment) Bill, 2017 was introduced in the Lok Sabha on 5 April 2017 by Thawar Chand Gehlot, then Minister of Social Justice and Empowerment.

• Lok Sabha Passed: 10 April 2017
• Referred to Rajya Sabha Select Committee: 11 April 2017
• Select Committee Report Submitted: 19 July 2017 (Chairman: Bhupender Yadav)
• Rajya Sabha Passed with Amendment: 31 July 2017
• Lok Sabha Reconsidered and Passed (with changes): 2 August 2018
• Rajya Sabha Unanimously Approved Final Version: 8 August 2018 (156 votes in favour)
• Presidential Assent by Ram Nath Kovind: 11 August 2018

The amendment was published in The Gazette of India on the same day and came into effect immediately.

Key Provisions of the Amendment

The One Hundred and Second Amendment inserted Article 338B and Article 342A into the Constitution, while also amending Article 366 to include relevant definitions.
1. Article 338B – National Commission for Backward ClassesThis article establishes the NCBC as a constitutional body with defined powers, composition, and functions.
Composition:

• Chairperson, Vice-Chairperson, and three other Members.
• Appointed by the President of India by warrant under his hand and seal.

Functions and Powers: The Commission’s duties include:

• Investigating and monitoring matters relating to the safeguards for socially and educationally backward classes under the Constitution and other laws.
• Inquiring into specific complaints of deprivation of rights of backward classes.
• Advising the Union and State Governments on socio-economic development policies for these communities.
• Presenting annual and special reports to the President on its activities.
• Making recommendations on inclusion or exclusion of any community in the list of backward classes for the purposes of reservations.

The Commission also enjoys powers of a civil court under the Code of Civil Procedure, 1908, for summoning witnesses, requisitioning documents, and conducting inquiries.
2. Article 342A – Specification of Socially and Educationally Backward Classes

• The President of India, after consultation with the Governor of a State, has the power to specify the socially and educationally backward classes (SEBCs) for that State or Union Territory.
• Parliament alone can include or exclude any community from the central list of backward classes by law.

3. Amendment to Article 366

• Added Clause (26C) defining “Socially and Educationally Backward Classes” as those specified under Article 342A.

4. Repeal of Previous LegislationThe National Commission for Backward Classes Act, 1993 was repealed following the enactment of this amendment. The National Commission for Backward Classes (Repeal) Act, 2018 formally abolished the old statutory framework.

Objectives of the Amendment

The primary objectives of the amendment were:

• To grant constitutional status to the National Commission for Backward Classes.
• To safeguard the interests of OBCs through a constitutional mechanism similar to that for Scheduled Castes and Scheduled Tribes.
• To strengthen the federal mechanism for identifying and protecting backward classes through a clearly defined constitutional procedure.
• To ensure greater accountability and institutional permanence for the NCBC.

Implications and Impact

1. Constitutional Empowerment: The amendment elevated the NCBC from a statutory advisory body to a constitutional authority, thereby increasing its independence and influence in policy formulation related to backward classes.
2. Reorganisation of Power: By introducing Article 342A, the amendment vested the power to identify SEBCs with the President (for the Centre) and Parliament (for inclusion/exclusion), effectively reducing the role of individual state governments in maintaining separate OBC lists.
3. Federal Controversy: Several states initially expressed concern that the amendment could centralise power, undermining their authority to identify backward classes at the state level. This issue later became the subject of judicial interpretation.
4. Strengthened Constitutional Framework: The NCBC was given powers and status comparable to the National Commission for Scheduled Castes (Article 338) and the National Commission for Scheduled Tribes (Article 338A), ensuring parity among all three commissions dedicated to marginalised communities.

Judicial Pronouncements

The scope and implications of the One Hundred and Second Amendment were examined in the landmark case concerning the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, commonly referred to as the Maratha Reservation Case.
On 5 May 2021, a five-judge Constitution Bench of the Supreme Court of India upheld the constitutional validity of the amendment. However, it held that:

• After the insertion of Article 342A, the power to identify SEBCs for inclusion in the central list rests exclusively with the President, and subsequent changes can only be made by Parliament through law.
• States, however, retain the power to maintain their own separate OBC lists for purposes of reservation in state-level institutions and employment, as reaffirmed by the later One Hundred and Fifth Amendment Act, 2021.

Significance

The One Hundred and Second Amendment marked a constitutional milestone in India’s commitment to social justice. Its significance can be summarised as follows:

• Institutional Strengthening: Provided the NCBC with constitutional protection and greater authority to enforce safeguards for backward classes.
• Administrative Uniformity: Established a clear, standardised framework for classifying and protecting socially and educationally backward communities.
• Judicial and Legislative Balance: Clarified the respective roles of the Centre and States in maintaining backward class lists.
• Empowerment of Backward Classes: Reinforced the constitutional mandate for inclusion and equality, promoting political, social, and educational representation for OBCs.