The National Democratic Alliance (NDA) government suffered terrible embarrassment yesterday (31 July) in the Rajya Sabha as Congress leader Digvijaya Singh managed to pass important amendments related to the structure and composition of the National Commission for Social and Educationally Backward Classes (NCSEBC), a body the government is trying to create by passing the 123rd Constitutional Amendment Bill.

Since the opposition did not have a two-thirds majority to carry the amendments in the bill, the complete Clause 3 of the NCSEBC Bill was dropped and the remaining bill was passed in the upper house. Clause 3 lays out the structure and composition of the proposed commission, deals with the appointment process of its members and its duties, and gives it the powers of a civil court. Put simply, Clause 3 is the constitution of the commission and without it, it can’t come into existence.

The amendments moved by Digvijaya Singh were exactly the same as that he had written in a dissent note to the Rajya Sabha’s select committee, where the bill was debated at length. The NDA’s bill proposed a commission comprising a chairperson, vice-chairperson and three other members. Singh’s amendment proposed to make it a five-member body (apart from the chairperson and vice-chairperson), all belonging to the backward classes, of which “one shall be woman and one at least shall be from the minority community”. Another important change Singh intended to introduce was to give the commission more teeth by making its recommendations “ordinarily binding” on the government.

More serious is Singh’s amendment that essentially gives the commission power “to examine and advise the central government on the inclusion and exclusion from the list of socially and educationally backward classes for the purpose of enabling the Parliament to amend the list...” This defeats the whole purpose of the NDA government’s bill by maintaining the status quo. The present OBC commission, NCBC, has similar powers.

The BJP wishes to render the body toothless by concentrating power in Parliament and the President. The bill passed by the Lok Sabha and approved by Rajya Sabha’s Select Committee, to be passed without amendments in the upper house, will do just that.

The most important part of the bill is Clause 4, which will insert a new article, 342A, after article 342 of the Constitution consisting of two sub-clauses:

(1) The President may with respect to any state or Union territory, and where it is a state, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes, which shall for the purposes of this Constitution, be deemed to be socially and educationally backward classes in relation to that state or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the central list of socially and educationally backward classes specified in a notification issued under Clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Essentially, a president can specify the socially and educationally backward classes in any state of the country through a mere public notification after consultation with the governor; however, his advice will not be binding. For a change in the central OBC list, Parliament can include any caste by passing a law with a simple majority.

Under the NCBC Act of 1993, the commission’s advice on the inclusion or exclusion of caste was made “ordinarily binding” on the government. However, governments normally ignored it. But this power of the NCBC counted in courts, as we saw with the Jat quota when the Congress government included them in central OBC list against the wishes of the commission. The Supreme Court struck it down and the NCBC’s opinion mattered.

But now, once the new bill comes into force, thanks to Clause 4, courts won’t be able to strike down inclusion of castes because the president or Parliament will be adding them in OBC lists following proper Constitutional means. Surprisingly, no amendments to Clause 4 were passed in the Rajya Sabha, and the government’s version triumphed.

As I write here, “If the centre manages to pass this bill through Rajya Sabha, it will be killing many politically inconvenient birds with one stone. Mutinees by the Marathas, Jats and Patels that have cast a dark shadow over the BJP's prospects in electorally crucial states may become a thing of past.”

But what happens now, given that the Rajya Sabha has passed the bill without Clause 3? The bill will go to the Lok Sabha again, where the government’s original version will be passed without any difficulty and come back to the Rajya Sabha again. This time around, though, the BJP is likely to be well prepared. Yesterday (31 July), less than 130 members were present in the house and Digvijaya Singh’s amendments were passed 74-52. The NDA’s strength itself is 90 after the inclusion of Janata Dal (United) in the coalition. It would not have been hard to pass the bill if the party had not taken it so lightly. Parties like the Samajwadi Party (18 MPs) and the Bahujan Samaj Party (five MPs) also support the bill. Add All India Anna Dravida Munnetra Kazhagam and Biju Janata Dal and passing it will be a cakewalk. The BJP needs to get its act together in floor management.