 bill no 299 of  2015 the national commission for backward classes (amendment) bill, 2015 byshri pp chaudhary, mpa billto amend the national commission for backward classes act,1993be it enacted by parliament in the sixty-sixth year of the republic of india as follows:—short title and commencement1 (1) this act may be called the national commission for backward classes(amendment) act, 20155(2) it shall come into force on such date as the central government may, by notificationin the official gazette, appoint27 of  1993amendment of section 1102 in section 1 of the national commission for backward classes act, 1993 (hereinafter referred to as the principal act), in clause (1), for the words "national commission for backward classes", the words "national commission for welfare of backward classes" shall be substituted3 in section 2 of the principal act,—amendment of section 2(i) after clause (a), the following clause shall be inserted, namely:—"(aa) "appropriate government" means the government of a state in case of a state and in all other cases the union government;" (ii) for clause (c), the following clause shall be substituted, namely:—51015"(c) "lists" means lists prepared by the government of india from time to time for article 16(4) of the constitution and making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that government, are not adequately represented in the services under the government of india and any local or other authority within the territory of india or under the control of the government of india and also includes those that deal with the making of any special provisions for the advancement of any socially and educationally backward classes of citizens for article 15(4) of the constitution or relating to the advancement of such classes of citizens in 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 of the constitution for article15(5) of the constitution  and such lists scope is to be limited by the applicability of articles 15(4) and (5) and 16(4) of the constitution"20amendment of section 34 in section 3 of the principal act, in sub-section (2), for clauses (b) and (c), the following clauses shall be substituted, namely:—"(b) two social scientists;(c) three persons, who have special knowledge in matters relating to backward classes; and"25amendment of section 85 in section 8 of the principal act, for sub-section (2), the following sub-section shall be substituted, namely:—"(2) the commission shall follow at its sittings such procedure as may be prescribed by the central government"306 for section 9 of the principal act, the following section shall be substituted, namely:—substitution of new section for section 9functions of the commission"9 (1) the commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of the exclusion or against the inclusion of any backward class in such lists and tender such advice to the central government as it deems appropriate3540 4550(2) the recommendations of the commission shall ordinarily be binding upon the central government:provided that it shall not be necessary to consult the commission if a community/class of citizens has already been declared as "backward" by the appropriate government and the central or state government may declare such declared community/class of citizen as "backward" and include it in its list of backward classes which in the opinion of the appropriate government is not adequately represented in the services under it, for the purpose of article 16(4)of the constitution:provided further that the appropriate government may also make provisions for the advancement of socially and educationally backward classes or for the admission of socially and educationally backward classes to educational institutions in line with existing limitations without necessary consulting the commission if the central or state government has already included the group of citizens in its list of backward classes in line with article 15(4) and (5) of the constitution" statement of objects and reasonsthe national commission for backward classes (ncbc) was constituted as a permanent body for entertaining, examining and making recommendations with regards to claims against the exclusion or against the inclusion of classes in the list of obcs for the purpose of article 16(4) of the constitution the ncbc was constituted by the ncbc act, 1993 which was legislated after the supreme court of india's judgment, dated 16/11/1992 in the writ petition (civil) no 930 of 1990—indira sawhney and others vs union of india and others in light of changes in the socio-economic conditions in the nation and the reading of the act with the constitution, the ncbc act, 1993 requires a relook and hence the above mentioned amendments have been proposed for the actarticle 15(4) of the constitution of india as an enabling provision allows the state, as defined by the constitution, to make special provisions for the advancement of any 'socially and educationally' backward classes of citizens or for the scheduled castes and the scheduled tribes article 15(5) allows the state to make special provisions in relation to their admission to educational institutions, including private and aided or unaided institutions other than minority institutions as referred to in article 30(1)article 16(4), allows the state to make any provisions for the reservation of appointments or posts in favour of any backward class of the citizens, which in the opinion of the state, is not adequately represented in the services under the statethe constitution while allowing the state these special provisions makes a distinction by including only socially and educationally backward classes under article 15(4), while allowing all classes of backward classes under article 16(4), making article 16(4) broader constitutional provision for the representation of backward classes however, article 16(4) deals with the question of  representation of backward classes in the services of the state with the additional caveat of  'adequate representation' hence, meaning that a class of citizens may be categorised as a backward class under article 15(4), however it may be adequately represented in the 'state services' even though it is socially and educationally backward and is hence ineligible for reservation under article 16(4)article 340 provides for the appointment of a commission to investigate the conditions of backward classes in the country the commission so appointed by the order of the president is constituted to investigate the conditions of socially and educationally backward classes and the difficulties under which they labour and 'to make recommendations as to the steps that should be taken by the union or any state' to remove such difficulties and to improve their conditionthe national commission for backward classes act, 1993 does not reflect the principles of welfare on which its creation was intended by the parliament hence the provision to amend the name of the act to represent the same is pertinent to reflect the true intentions of the act and the commission that it establishesthe parent act mentions the requirement of only one social scientist in the composition of the ncbc, while allowing two positions to persons, who have special knowledge in matters relating to backward classes the commission while dealing with the topic of backward classes must have adequate representation of people with an academic and profession background in the field of demographic studies regarding such classes in the case of the vacancy or absence of a member from the meetings of the commission, required and fruitful discussions will not be attainable hence, it is imperative to increase the representation of social scientists in the ncbc as they have domain specific knowledge of the subject matter, leading to better deliberation and recommendations from the commission to the governmentfurthermore, the addition of a new member having specialised knowledge in matters relating to backward classes, from eminent persons, will enhance the strength of the ncbc, leading to a larger and more wholesome bench for deliberations and rendering fruitful recommendations to the government such an increase in the strength of the ncbc will lead to an increase in the quorum requirements for the meetings of the ncbc, further lifting the quality of deliberations as the number of members required per meeting increasesthe act confers upon the commission the power to hear complaints and make recommendations to the government against the over-inclusion or under-inclusion of any backward class in the lists established from time to time for the reservation of appointments or posts where such citizens are not adequately represented in the services under the government of india and any local or other authority within the territory of india or under the control of the government of india however the commission's domain is to ascertain the classes to be benefited and not the quantum for each class' representation hence the commission's jurisdiction to hear such complaints should be restricted to those that deal with the inclusion or against the exclusion of any backward class in such lists only this is in consonance with section 9(1) of the act that deals with the examination of requests for inclusion of any class of citizens as a backward classas stated above, article 340 of the constitution of india provides for the commission to make 'recommendations' as to the steps that should be taken by the union or any state to remove difficulties faced by the backward classes and to improve their condition hence, to make the advice of the commission ordinarily binding on the central government is an aberration and is vide for being in conflict with article 340 of the constitution and hence should be repealed moreover article 16(4) of  the constitution is framed with the caveat of'in the opinion of the state' and hence with respect to the article decisions regarding reservation as espoused by article 16(4) for adequate representation in the services under the state are in the sole domain of the government and no other subsidiary or constitutional body (ncbc) this is due to the fact that in such matters the decision of the state is material and not that of any other body that makes recommendations to the government on such matters hence meaning that the ncbc can only make recommendations and that the government is supreme in the decisions that are taken with regards to reservationsthe framers of the constitution while deliberating on the constitution did not intend to delegate any decision making power in this matter from the president they intended that the powers of the president were to be exercised by the president only and not be delegated to be exercised by the ncbc or any other such body in this regard article 15(4) however does not have this additional caveat and has no overriding effect of government decisions being supreme over the recommendations of constitutional bodies such as the ncbc with regards to its provisionsthe combined reading of  articles 16(4) and 340 of the constitution hence lay down the principle that the government should be free to make policies and decisions in the interests of the nation, wherein bodies such as the ncbc may make recommendations to the government but not bind the government to implement such recommendations in its decision makingthe basis of equality established as a fundamental right under articles 14-18 of the constitution implies that if a class of citizens has been determined to be falling under the tests of a backward class and a particular government either at the state or central level has notified it as a backward class then it follows that all such classes of citizens can be placed in the lists of the central and state governments for backward classes as the government so deems it to be fit and proper, following from the principle of  equality hence, allowing for the recommendations of the ncbc to be overruled or ignored due to strong and compelling reasons as established by the government at the state or central levels about the inadequate representation of such classes of citizens in the services under the government of india and any local or other authority within the territory of india or under the control of the government of india this principle is also applicable for the purposes of making provisions for the advancement of socially and educationally backward classes or for the admission of socially and educationally backward classes to educational institutions in line with the existing limitations without necessarily consulting the commission if the central or state government has already included the group of citizens in its list of backward classes in line with articles 15(4) and 15(5) of the constitutionas stated above the intent and extent of the applicability of articles 15(4), (5) and article 16(4) of the constitution differ hence, it is imperative that any recommendations that are made with respect to these articles by the commission to the government of india be in light of respecting these constitutional distinctions, while benefiting the intended beneficiaries of the recommendations as they belong to different backgrounds and require reservation for different purposeshence this billnew delhi;pp  chaudharynovember 13, 2015 memorandum  regarding  delegated  legislationclause 5 of the bill provides that the commission shall follow such procedure as may be prescribed by the central governmentas the procedure to be prescribed will relate to matters of detail only, the delegation of legislative power is of a normal character annexure extract from the national commission for backward classes act, 1993 (27 of 1993)      1 (1) this act may be called the national commission for backward classes act, 1993short title and commencement    definitions2 in this act, unless the context otherwise requires,—(a) "backward classes" means such backward classes of citizens other than the scheduled castes and the scheduled tribes as may be specified by the central government in the lists;    (c) "lists" means lists prepared by the government of india from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that government, are not adequately represented in the services under the government of india and any local or other authority within the territory of india or under the control of the government of india;    3     (1)    (2)    constitution of the national commission for backward classes(a)   (b) a social scientist; (c) two persons, who have special knowledge in matters relating to backward classes;    8 (1)    (2) the commission shall regulate its own procedureprocedure to be regulated by the commission    functions of the commission9 (1) the commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the central government as it deems appropriate(2) the advice of the commission shall ordinarily be binding upon the central government     ———— a billto amend the national commission for backward classes act, 1993————(shri pp chaudhary,  mp)gmgipmrnd—3049ls(s3)—08-12-2015