GS - 2 (MAINS MODULE)

(By M. Puri Sir)

10. FUNDAMENTAL RIGHTS - ARTICLES 14 & 15............................................................................7

11. FUNDAMENTAL RIGHTS - ARTICLE 16 AND AFFIRMATIVE ACTION............................................. 12

“All material appearing on the “Sarrthi IAS” ("content") is protected by © copyright . You may not copy,
reproduce, distribute, publish, display, perform, modify, create derivative works, transmit, or in any way
exploit any such content”
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

(Continued Topic 9- NATURE OF FUNDAMENTAL RIGHTS, ARTICLE 12 & 13)

The apex courts position:
●​ Shankari Prasad case, 1951 to Sajjan Singh case, 1965, the apex court held on to a narrow
interpretation of the term law in Article 13 and considered constitutional amendment laws out
of the scope of its definition. This proposal that the court made was that parliament has the right
and authority to amend the constitution, and it is unfettered.
●​ In the Golaknath Case, a 11 judge bench with a narrow margin of 6-5 reversed its earlier
interpretation and moved towards the wider interpretation of the term law and hence included
even the constitutional amendment laws under the purview of judicial review. The court
observed that the fundamental rights are termed fundamental for a reason; they have been
given a uniquely elevated position and status in the constitution, and hence are transcendental
in nature and rise above the other provisions. The court hence deemed the fundamental rights
unamendable.

Reaction from the executive and legislature:

●​ In the 24th Constitution Amendment Act, 1971, both Articles 13 and 368 were amended by
adding Article 13(4) and 368(3).
○​ Art 13(4) stated that nothing in Article 13 would apply to any amendment of the
constitution done under Article 368. This was an attempt to narrow down the
interpretation of the term law used in Article 13.
○​ Art 368(3) stated that nothing in article 13 shall apply to provisions made under this
article to double secure the narrow interpretation. This was challenged in the future in
the Keshavananda Bharti vs. State of Kerala (1973), popularly known as the
Keshavananda Bharti case.
●​ Keshavanada Bharti Case (1973) was a case concerning freedom of religion that ultimately
decided the question regarding the amendability of fundamental rights.
○​ The courts took a middle path between the narrow interpretation espoused from
Shankari Prasad case till Sajjan Singh and the wider interpretation in Golaknath case. The
courts observed that all parts of the constitution are amendable but no change or
amendment should have the effect of changing or altering the basic structure or core
identity of the constitution.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

○​ The courts generally defined the basic structure as those elements without which or if
there is an infringement of them, the constitution will lose its very soul and essence.
○​ The apex court in various judgements over the last five decades has listed out the various
features that constitute the basic structure.

Some features constituting the basic structure:

●​ Supremacy of the constitution
●​ Rule of law
●​ Separation of Powers
●​ Judicial Review
●​ Federalism
●​ Secularism
●​ Unity and integrity of the country
●​ Sovereign, Democratic, Republican structure
●​ Dignity of the individual
●​ Independence of Judiciary
●​ Principle of welfare state
●​ Parliamentary form of government
●​ Limitations on amending powers under Article 368

Critique of Basic Structure:

●​ No constitutional basis:
○​ The constitution as a whole is a basic law and the basic structure provision is an attempt
to locate something even more basic than that.
○​ This line of thought was not there in the constituent assembly. The constituent assembly
never notified that some features are more important than others.
●​ Rewriting the Constitution:
○​ The judiciary's job is to interpret the constitution, and the court's attempt to locate a
more basic law within the basic law itself i.e. the constitution, practically amounts to
rewriting the constitution and assuming the role of constituent assembly.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

○​ The Supreme Court has practically become the third and decisive legislative chamber of
the parliament, apart from the LS and RS in framing laws.
●​ Against the principle of majority:
○​ Democracy can be described as rule by the majority.
○​ Constitutional amendments require an overwhelming majority to pass in the legislature.
Thus, assumption of the role of SC as a super arbiter of the validity of constitutional
amendments amounts to the illegitimate negation of democratic rule i.e. majority rule.
○​ But the judiciary in liberal democracies with a separation of powers do play a
counter-majoritarian role, thus preventing arbitrary laws and laws violative of rights
from coming into fruition.
○​ A law making process based solely on majority rule, where neither the opposition, media
nor public opinion can halt the passage of arbitrary legislation, then it becomes
imperative for the court to come into the picture and play a counter-majoritarian role, so
this criticism has a significant caveat attached to it.
●​ Decision by narrow margin:
○​ This 13-judge bench had a very narrow majority of 7-6, and thus, such a fundamental
revision of the constitution with such a slim margin inspires less confidence.
●​ Decision to include or exclude features based on subjective assessment:
○​ The power to decide the inclusion of subjects in the basic structure lies with the apex
court bench and the judges on it. Hence, any subject's inclusion or non-inclusion is based
on subjective assessment of the judges which can vary from person to person and even
time.

Points in support of basic structure:

●​ In a democracy based on constitutionalism, the concept of constitutionalism abhors absolutism;
there is no place for absolute power in a constitutional democracy, hence parliament's power to
amend the constitution cannot be absolute and hence has to be subjected to some limitations.
●​ Basic structure doctrine helps in preserving our core values and constitutional identity. Popular
opinion is always fleeting and always fluid. If there is some provision that the country wants
today, it may not want it tomorrow.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

●​ The parliament can amend the constitution but cannot redraft it. Temporary urges of the
majority of today cannot be made to override the permanent vision in the constitution of our
framers. The parliament thus has the power to amend and not re-draft the constitution.
●​ Basic structure privileges uncertain democracy over certain tyranny.
●​ The overarching framework of our constitution is secular, liberal democracy, thus the elements
in the constitution work towards enacting this framework. Any provision being classified as a
part of basic structure actually works towards the further strengthening of the goal towards
secular, liberal democracy.
●​ But which provisions of the constitution constitute basic structure is uncertain and may vary
from judge to judge or bench, thus leading to an uncertain democracy.
●​ But the courts have been very responsible about applying basic structure doctrine and have not
abused their powers.

Application of the Basic Structure Doctrine by the Supreme Court:

1.​ 39th Constitutional Amendment Act, 1975: Struck down in the Indira Nehru Gandhi v. Raj
Narain case (1975) for violating the principle of free and fair elections, which forms part of the
basic structure.
2.​ 42nd Constitutional Amendment Act, 1976: Clauses (4) and (5) of Article 368—introduced to
exclude judicial review of constitutional amendments—were declared unconstitutional in the
Minerva Mills v. Union of India case (1980) for infringing upon the doctrine of limited amending
power.
3.​ 52nd Constitutional Amendment Act, 1985: In the Kihoto Hollohan v. Zachillhu case (1992), the
Supreme Court upheld the Tenth Schedule but ruled that the Speaker’s decisions under the
anti-defection law are subject to judicial review, as exclusion of such review would violate the
basic structure.
4.​ Articles 323A and 323B: In the L. Chandra Kumar v. Union of India case (1997), the Court
invalidated the provision that barred High Courts from entertaining appeals against the decisions
of administrative tribunals, thereby upholding the basic structure requirement of judicial review
under Articles 226 and 227.
5.​ 99th Constitutional Amendment Act, 2014: In the Supreme Court Advocates-on-Record
Association v. Union of India case (2015), commonly known as the Fourth Judges Case, the
National Judicial Appointments Commission (NJAC) was held unconstitutional for violating the
independence of the judiciary, a basic feature of the Constitution.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

International Examples:
●​ This has led to basic structure doctrine being adopted in international jurisprudence, an
example being the Bangladesh Supreme Court in 1989 quoting Keshavananda Bharati
judgement, applied the basic structure doctrine to Bangladesh constitution as well.
●​ Uganda, too, referred to the Keshavananda Bharati Judgement in 2019 to adjudicate the
amendments made in the constitution.
●​ Apart from this, in the Basic Law of Germany under Article 79 talking about the amendment
procedure, has a provision saying that there are certain provisions in the constitution that are
not amendable, thus codifying a basic structure in the constitution itself and not through the
courts.

The concept of the basic structure was already implicit in the Constitution, right from the Objectives
Resolution to the Preamble, and was further reflected in the specific provisions that define its character.
So, the Supreme Court, through its judgments, made this inherent feature of the Constitution explicit by
articulating the doctrine of basic structure and subsequently identified those elements which are the
part of the basic structure of the Constitution.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

10. FUNDAMENTAL RIGHTS - ARTICLES 14 & 15

Categories of Rights:
●​ Right to Equality (14-18)
●​ Freedom (19-22)
●​ Exploitation (23-24)
●​ Freedom of Religion (25-28)
●​ Cultural and Educational Rights (29,30)
●​ Right to Constitutional Remedies (32,226)

Article 14
●​ Equality before law:
○​ The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.
○​ The article is available to "any person," hence available to citizens as well as foreigners
i.e. equality before law and equal protection of law
○​ Theorized by Dicey, basically, all people have to be subject to equal application of the law
of the land. In the eyes of the law, all are treated equally, hence formally equal.
○​ It is seen as a negative right in nature because nobody is given special privileges.
○​ Some exceptions: Article 361, diplomatic immunity, parliamentary privileges,
defamation, contempt of court
●​ Equal Protection of Laws (EPL):
○​ Just because everybody is equal before law, doesn't necessarily mean everybody is
actually equal.
○​ It is considered a positive concept, in contrast to EBL which is seen as a negative concept.
While EBL is derived from England, EPL is borrowed from US.
○​ It simply means that like must be treated alike, or law must be equally applied among
equals, thus it gives in effect the substantive notion of equality.
○​ For the purpose of equal protection of laws, we need to classify societies, and then
different treatment can be meted out to the different groups, but courts have added the
classification of society should be reasonable and not arbitrary.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

●​ It has given two tests of reasonableness:

○​ Firstly, categories so formed should be a homogenous unit,
○​ Secondly, the classification exercise should have a reasonable nexus with the objective to
be secured.
○​ Example: Allowing Kodava communities to possess firearms without a license due to their
martial traditions, and permitting army officers to consume alcohol in mess premises, are
constitutionally valid as they satisfy the test of reasonable classification under Article 14.

Article 15:
●​ Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
○​ (1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them
■​ In the Pradeep Jain case (1984), the Supreme Court upheld the constitutionality of
domicile-based reservations in state educational institutions but cautioned that
such quotas cannot amount to wholesale reservation.
■​ More recently, in the Veena Vadini Teachers Training Institute case (2023), the
Supreme Court directed the Madhya Pradesh government to reconsider its policy of
reserving 75% of seats in state-run B.Ed. colleges for local candidates.
○​ (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to
■​ (a) access to shops, public restaurants, hotels and places of public entertainment;
or
■​ (b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public
○​ (3) Nothing in this article shall prevent the State from making any special provision for
women and children.
○​ (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

●​ State cannot discriminate citizens only on the mentioned grounds.

●​ NCRWC recommended the grounds to be expanded based on political opinion, property and
social and ethnic origin.
●​ The state can discriminate based on grounds that aren't mentioned here.eg-residence.
●​ But the state can positively discriminate for women and children, while the first clause provides
vertical protections from discrimination, the second clause provides for protection from
horizontal discrimination (e.g. of Tamil Nadu (Restriction on entry to Public Places based on
Dress Codes) Act, 20 14).

Is there a provision in the constitution to reserve government jobs for backward castes/classes?
●​ While Article 16(4) gives govt sanction for reservation for backward classes in government jobs,
Article 29(2) denies such discrimination in educational institutions:
○​ Article 29 (2): No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on the grounds only of religion,
race, caste, language or any of them.
●​ Thus, quotas based on this article are prohibited. But since caste based quotas were available in
pre-independence times, they continued after independence as well.
●​ But in the Champakam Dorairajan Case of 1951, based on Article 29(2), courts struck down the
quotas.
●​ To get around the judgement, the first constitutional amendment act added a clause 4 to Article
15:
○​ Article 15(4): Nothing in this article or in clause (2) of Article 29 shall prevent the State
from making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Present status of reservations in India:

●​ Scheduled Castes: 15%
●​ Scheduled Tribes: 7.5%
●​ OBCs: 27%
●​ Persons with Disability (PwD): 4%
●​ Economically Weaker Sections (EWS): 10%
●​ Total reservation: 63.5%
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

Various state governments have been pressurizing private institutions for reservation; can the
government impose such reservation?
●​ Apex court in P.A. Inamdar judgement in 2005, private unaided education institutions cannot be
forced to have quotas due to Article 14 and Article 19(1) (g).
●​ While private enterprises are commercial entities and hence singling out one private sector entity,
while leaving out others, is a violation of Art 14 and they also can carry out their occupation due
to freedom of profession as seen in Art 19(1) (g).
●​ To get around this judgment, 93rd Constitution Amendment Act was passed wherein Article
15(5) was added:
○​ Article 15(5): Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall
prevent the State from making any special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled Castes or
the Scheduled Tribes in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions referred to in clause
(1) of article 30.
●​ While minority institutions were omitted, special provisions for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes relating to their admission in educational institutions can be done only through law.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

●​ But reservation in government jobs doesn't need a law; they can be brought through an executive
order, because a requirement of law was not present in Article 16(4).
●​ Similarly, while law is required to make provision for backward classes in educational institutions,
no such law is required for the EWS quota as per Article 15(6) after the 103rd Constitution
Amendment Act.
○​ Article 15(6): Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2)
of article 29 shall prevent the State from making,-
■​ (a) any special provision for the advancement of any economically weaker sections
of citizens other than the classes mentioned in clauses (4) and (5); and
■​ (b) any special provision for the advancement of any economically weaker sections
of citizens other than the classes mentioned in clauses (4) and (5) in so far as such
special provisions relate to their admission to educational institutions including
private educational institutions, whether aided or unaided by the State, other than
the minority educational institutions referred to in clause (1) of article 30, which in
the case of reservation would be in addition to the existing reservations and
subject to a maximum often per cent of the total seats in each category.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

11. FUNDAMENTAL RIGHTS - ARTICLE 16 AND AFFIRMATIVE ACTION

Article 16:
●​ Equality of opportunity in matters of public
○​ (1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State
○​ (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect or, any
employment or office under the State
○​ (3) Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the
Government of, or any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory prior to such
employment or appointment
○​ (4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favor of any backward class of citizens which,
in the opinion of the State, is not adequately represented in the services under the State
○​ (5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination
○​ (6) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any economically weaker sections of
citizens other than the classes mentioned in clause (4), in addition to the existing
reservation and subject to a maximum of ten per cent. of the posts in each category.
●​ The article states that there shall be equality of opportunity for all citizens relating to public
employment.
●​ Does the term employment refer to the process of initial recruitment only or also the whole
tenure of employment? The Apex Court has remarked that the term employment not only
refers to the initial employment but also whatever happens post-employment concerning
the job.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

●​ The second clause mentions certain categories under which discrimination is not allowed. But
if there is a requirement of local residence, the state government cannot impose that, despite
many chief ministers claiming the state government would impose such a thing. Such a thing
can only be carried out by the parliament and only through law for that matter. An interesting
fact is that the USA was the first country to provide a domicile quota in public
employment.
●​ There was a Public Employment Act enacted in 1957, which authorized domicile quota for
certain categories of posts in the state of Andhra Pradesh and the erstwhile union territories of
Himachal Pradesh, Manipur, and Tripura, but this act expired in 1974. Before the expiry of this
act, through the 32nd Constitutional Amendment Act, Article 371D was added, authorizing
domicile qualification for Andhra Pradesh and now Telangana. For other states, Parliament
still has to enact a law to provide for a domicile quota like the previously enacted 1957 act.
●​ The fourth clause talks about the provision of reservations to backward classes who have not
been adequately represented in the services.

Reservation/Quota Debate i.e., Affirmative Action:

●​ The term Affirmative action is a more refined term for reservation initially used in public by the
former US President John F. Kennedy in 1961 in relation to equal opportunities between
people of color and the Whites. Affirmative action is thus followed even in the USA.
●​ Thus, affirmative action is a set of anti-discriminatory measures that are provided to provide
access to preferred positions in society to those groups who would otherwise be excluded
or may go unrepresented. These preferred or elite positions were monopolized by the upper
sections of society based on their gender, caste, class, etc. By providing affirmative action, the
state is trying to alter the social composition of elite positions. Without these affirmative action
measures, the representation of backward classes in these preferred positions would go
unrepresented or excluded.
●​ To uplift the status of backward classes, two approaches were proposed. One was the
Gandhian Approach or the Spiritual Approach. Ashwini Deshpande in her book on
affirmative action in India, uses the term Evangelical Approach. This approach basically
revolved around the moral regeneration of the upper castes of Hindu society through
philanthropic uplift of the backward sections.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

●​ The second approach was advocated by Ambedkar, namely the Objective Approach, which
was secular in nature and not spiritual as invoked by Mahatma Gandhi. Ambedkar rejected the
notion that there is going to be a change of heart of the upper sections regarding the Dalits. He
said we cannot wait for many years for this moral regeneration to take place, and thus we need
objective measures like certain provisions in the Constitution itself for the upliftment, like the
prevalent provisions for SCs and STs in the Constitution itself.

Note: The first person in India to provide such quotas was King Shahu IV, the ruler of the princely
state of Kolhapur in 1902, who carried out the first organized step in the upliftment of Dalits.
●​ The 1931 Census carried out by the Census Commissioner J.H. Hutton was the first caste
census ever done in India. There was a similar exercise done regarding the SECC, but it was an
exercise carried out separately from the Census, and its results have not been revealed yet. On
the recommendations of J.H. Hutton, the first list of Scheduled Castes was published. The
primary criteria to classify these castes were the temple entry restrictions and pollution by
touch or proximity.
●​ But many of the SCs had converted to other religions too. So, the categorization that was
initially limited to Hinduism was soon extended to Buddhism and Sikhism too. But the
categorization of STs and OBCs is religion-neutral and can be categorized from any religion.
●​ But many of the SCs also converted to Islam and Christianity and did not get the benefit of
the affirmative action policies due to their non-inclusion in the SCs list. Thus, many
commentators have claimed that such a policy is biased towards lndic religions. Thus, a
petition challenging this anomaly is pending in the Supreme Court.
●​ In 2015, an interesting judgment was delivered by the Apex Court in the KP Manu judgment.
The court said that the benefits arising out of affirmative action for SCs would not be applicable
for members professing Islam and Christianity, but if the members converted back to either
Hinduism, Buddhism, or Sikhism, they can avail themselves of the affirmative action benefits.
Pratap Bhanu Mehta, a commentator, remarked that the court is extending affirmative action
benefits not on the basis of deprivation status of a community but their conversion status.
●​ Secondly, the court also said that the community needs to accept back the conversion. Mehta
remarked that the constitution provides freedom of religion to each individual citizen, so how
can the acceptance of a community be deemed a valid criterion for the acceptance or
non-acceptance of faith by a citizen, thus creating an entity similar to Khap Panchayat, and
was also promoting agendas like Ghar-wapsi.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

●​ In October 2022, the Government of India appointed a three-member commission chaired by

former Chief Justice of India K. G. Balakrishnan to examine whether individuals from
Scheduled Caste communities who have converted to religions outside Hinduism, Buddhism, or
Sikhism should continue to be recognized as SCs. In November 2024, its term was extended to
October 10, 2025, due to logistical delays and to allow comprehensive field consultations.
●​ In 2007, the National Commission for Religious and Linguistic Minorities, chaired by former
CJI Justice Ranganath Misra, submitted its report (commonly referred to as the Ranganath
Misra Commission Report) to the Government of India on May 21, 2007. The Commission
recommended the extension of SC status to Dalits who have converted to Christianity or Islam.
●​ In the Muslim community, 3 levels of stratification: Ashraf (upper-class Muslims), Ajlaf
(Backward class Muslims), Arzal (Dalit Muslims). Ajlaf and Arzal constitute the Pasmanda, which
makes up 85% of the Muslim Community.
●​ C. Selvarani v. The Special Secretary‑cum‑District Collector judgment (2024): If the purpose
of conversion is largely to derive the benefits of reservation but not with any actual belief in the
other religion, the same cannot be permitted … it would amount to fraud on the Constitution.

Identification of SCs:
●​ The Central Government prepares the list of Scheduled Castes in consultation with State
Governments of every state and compiles them to create a single central list of SCs.
●​ In Article 341, the provisions say that only the Central Government has the power. Thus, the
President in consultation with State Governments via the Governor, notifies the list of SCs
through a public notification. Any subsequent modification to the list can be carried out
only through the Parliament through a law.
●​ Thus, post the SC Constitutional Order of 1950 that specified the list of SCs, any further
modification to the list is carried out by the Parliament. This power of the Parliament is
mentioned in the second clause of Article 341. It also further states that this modification of the
list cannot be carried out through any subsequent notification, thus disallowing the executive
from carrying out the action and vesting the power in Parliament.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

Identification ofSTs:
The 1965 Lokur Committee set out five key criteria for identifying ST communities: primitive traits,
distinct culture, geographical isolation, limited external contact, and social-economic backwardness.

Proposed ST Inclusion Criteria

1.​ Common community name for group identity
2.​ Distinct language or dialect
3.​ Core cultural features related to Life-cycle traditions like songs, dances, folklore, painting, etc.
4.​ Endogamy
5.​ Autonomous religious beliefs and practices, though practicing a Hindu way of life is not
prohibited.
6.​ Traditional social-control institutions
7.​ Low level of techno-economy and mutual interdependence.
8.​ Socio-economic & educational backwardness
Presently, the procedure followed to identify STs is similar to the provision followed for the inclusion
and further modification that is carried out for the SCs as discussed previously.

Identification of OBCs and Role of NCBC:

●​ Until the 102 Amendment Act, for a very long time, both the Centre and states identified
OBCs in their respective Central and State OBC lists. Similarly, the states also had a State
Backward Classes Commission to aid the States in this matter.
●​ In 1993, the Central Government set up the National Commission for Backward Classes to aid
the centre in matters related to the Union list under the NCBC Act 1993.
●​ The composition of NCBC included the following members, namely
○​ Chairperson who is or has been an SC/HC Judge
○​ A Social Scientist
○​ Two Persons with Special Knowledge concerning OBCs
○​ A member cum secretary who would be a government nominee
●​ It would entertain and dispose off requests concerning inclusion into the Central list, and hence
the NCBC would advise the Central Government regarding this.
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

●​ This law also provided that every 10 years, the Central Government would conduct a review
of the Central OBC list to exclude those castes that have ceased to be backward now and
include those that have been freshly identified as backward, for which the Central
Government has to consult the NCBC.
●​ The law also says that the advice tendered by the NCBC would be ordinarily binding on the
government. Any deviations from the advice tendered would invite an explanation.

Article 338 B and NCBC

●​ A change came about through the 102nd Constitutional Amendment Act, 2018, through which
NCBC was given constitutional status under Article 338 B.
●​ Earlier, NCBC could not entertain complaints regarding the deprivation of rights of already
identified OBCs like NCSC and NCST, this anomaly was sought to be removed through this
Amendment Act. The Act has been framed on similar lines as those of the NCSC (Article 338)
and the NCST (Article 338A).

Key functions of the National Commission for Scheduled Castes (NCSC) (similar to NCBC):
1.​ Investigate and monitor all matters related to constitutional or legal safeguards for Scheduled
Castes, and assess their effectiveness.
2.​ Inquire into specific complaints concerning deprivation of rights or violations of safeguards.
3.​ Participate in and advise on the socio-economic development planning process for Scheduled
Castes at both Union and State levels.
4.​ Evaluate progress in their development.
5.​ Submit annual (and special) reports to the President on implementation of safeguards.
6.​ Recommend measures for effective implementation and socio-economic upliftment of
Scheduled Castes.
7.​ Perform additional duties related to the protection, welfare, development, and advancement of
Scheduled Castes as directed by the President or as provided by law.
8.​ Possess civil court–like powers during investigations, including:
a.​ Summoning witnesses and examining them under oath
b.​ Requiring the production of documents, affidavits, and public records
c.​ Issuing commissions for witness/document examination
 GS - 2 (MAINS MODULE)
(By M. Puri Sir)

9.​ Central and State governments must consult the Commission on major policy matters
affecting Scheduled Castes.
10.​The NCSC also exercises identical functions—investigation, monitoring, advising, and
reporting—for the Anglo‑Indian community (this function is only there in the functions of
NCSC).

●​ The Act also added Article 342A, giving the Commission similar powers concerning the
identification of OBCs that the NCSC and NCST enjoy through Article 341 and Article 342,
respectively.

105th Constitutional Amendment Act, 2021

●​ In the Maratha Quota Judgement, the apex court remarked that by virtue of the 102nd
amendment that the power to identify OBCs has been vested in the Union government only
as in the case of SCs and STs.
●​ Thus, the 105th Amendment Act was passed in 2021 to correct this anomaly that had crept in,
which was not the intent of the Act. Article 342A and Article 3388 were amended in this Act.
●​ In Article 342A, a third clause was added saying that every state can prepare its own OBC
list, as the situation was before. Further, a clarification that the 102nd Act meant only powers
concerning the Central OBC list was added too.
●​ A further amendment was made in Article 338 B, where the existing provision was that each
State Government had to consult with NCBC before any modification to the State List, this was
sought to be amended in the 105th Amendment Act. Thus, a proviso was added that this
provision shall not restrict the State Government's power to identify their own state OBC
list under Article 342A (3).
GS - 2 (MAINS MODULE)
(By M. Puri Sir)