_Constitution Amendments 2021 law insider

By Athik Saleh

Published On August 24, 2021 22:15 IST

The Monsoon session of the Parliament in 2021 was in news for all the wrong reasons, again. It wasn’t short of drama or action, as in the previous sessions. There was Pegasus, custodial deaths, and most of all, an opposition trying their best to not let the House conduct any business and Government happy to sit back and enjoy. 

The reports say that the recently concluded monsoon session wasted a combined 151 hours. There was one instance though that caught the attention of the Indian public. It stood out for the ceasing of acrimony between the warring sections in the Parliament. For a moment, the Indian Parliament looked like a functioning institution. 

The aforementioned instance was when the Government moved the Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021, which later became the Constitution (One Hundred and Fifth) Amendment Act, 2021. Amidst all the noise and drama that was brewing in the Parliament, both Government and the Opposition joined hands for the smooth passage of the bill in both houses of the Parliament. 

For those who are thinking about what the amendment was about, let me ask you a question – what is that one instance in Indian politics where both Government and Opposition usually join hands or have the least disagreements about? The answer is reservations.

When it comes to reservations based on any parameter, no political party in the country is fool enough to oppose proposals of reservations. As they say, it’s shooting oneself in the foot. 

Another important piece of business done during the recently concluded session was the Constitution (Scheduled Tribes) Order (Amendment) Bill, 2021. The amendment was a result of recommendations made by Arunachal Pradesh. 

This article will cover the aforementioned amendments to the Constitution. The discussion will be centered around what the respective amendments are about and how they came into force.

What is the Constitution (One Hundred and Fifth) Amendment Act, 2021? 

Any discussion about this particular amendment won’t be complete without a wee bit of history. The birth of this amendment is a result of another Constitutional amendment and a judgement of the Supreme Court, and the ensuing fallout that pushed the NDA government into a corner. 

The amendment from where this is all began is the Constitution (One Hundred and Second) Act, 2018. This provision added two new articles into the Constitution – Articles 338B and 342A. These provisions were about the backward classes. 

Article 338B talks about a National Commission for Backward Classes. This provision gave constitutional status to the commission. Along with that, the provision laid down the composition, functions, and powers of the commission. 

It was, however, the other provision that the amendment added to the Constitution that became the subject of many discussions, protests, a Supreme Court judgement, more discussions and protests, and finally, another amendment. 

Article 342A gave the President the power to specify socially and economically backward classes (SEBCs) concerning a state or union territory. The NDA government added this provision to make it easy for the center to add socially and economically backward classes to the list. However, this came back and bit them in the Maratha quota case[i]

In the Maratha quota case, the reservation granted to the Maratha community came into question in the Supreme Court. The main part of the judgement was about how the reservation granted violates the ceiling for reservation set by the Court in Indra Sawhney Vs Union of India[ii]. There was another question that was asked during this case. 

It was whether the Constitution (One Hundred and Second) Amendment Act, 2018 denied the states their right to determine socially and economically backward classes in the state or not.

The Court unanimously upheld the validity of the amendment and with a 3:2 majority held that the amendment did, in fact, deprived states of their right to determine socially and economically backward classes and that only the President of the center now has the power to do the same. 

This judgement of the Court put the Central Government in a pickle. Although the center took the stand that Article 342A did not interfere with the state’s power, the Court’s judgement made it imperative for them to bring about a change. Impending elections in some of the bigger states made it easier for the Government to take a route around the court’s decision. 

In the Indian political power-play, there is not a single factor that determines the outcome as caste equations do. Therefore, when the Government introduced a bill to amend Article 342A amidst all the fracas in the Parliament, the opposition wholeheartedly supported it. 

The amendment was in line with what the Attorney General had stated for the Government in the Maratha quota case. The Attorney General had stated that the power of the President to specify socially and economically backward classes as per the provision was only applicable in the case of Central List and that the provision in no way meddles with a state’s power to specify the same for the State List. 

The amendment added an explanation and a new clause (3) to Article 342A. It also substituted the words “the socially and educationally backward classes which shall for the purposes this constitution” in clause (1) with the words “the socially and educationally backward classes in the Central List which shall for the purposes of the constitution”. The addition of the Central List in clause (1) clarifies that the President’s power to add and delete socially and educationally backward classes is limited to the Central List. 

The explanation after clause (2) explains what Central List means in this context. Accordingly, the list of SEBCs prepared by the Central Government is what the Central List provided in clause (1) alludes to. 

Now, another clause is added to the provision to give the power to add and delete socially and economically backward classes back to the states. Clause (3) states that nothing contained in the previous two clauses will hamper the power of states and union territories to prepare and maintain their own list of socially and economically backward classes. 

The amendment doesn’t stop there. It made changes to Article 338B and Article 366 as well. The amendment to Article 338B was to, in a way, dilute the power granted to National Commission for Backward Classes. Given by the Constitution (One Hundred and Second) Amendment Act. Clause (9) of the Article made consultation of the commission by both the Union and State Governments in important policy decisions concerning SEBC’s mandatory. 

The 127th amendment added a proviso to clause (9) of Article 336B which states that clause (3) of Article 342A will be out of the purview of the requirement of consultation mandated in clause (9). 

Another change made by the Constitution (One Hundred and Fifth) Amendment Act, 2021 is a slight change to the definition of socially and economically backward classes provided in Article 366. Accordingly, the amendment added that along with those backward classes added by the Center, those added by states and union territories will also be regarded as socially and economically backward classes. 

What is the Constitution (Scheduled Tribes) Order (Amendment) Bill, 2021?

This was another important piece of business conducted by the Parliament amidst the chaos. This bill was first passed by the Rajya Sabha and then by the Lok Sabha. There was back and forth between the Government and the Opposition regarding the hasty way the bill was passed. At the end of the day though, scheduled tribes like backward classes are a subject matter no political party wants to be at the wrong end of. 

The amendment bill was introduced in the Parliament to amend Part XVIII of the Schedule to the Constitution (Scheduled Tribes) Order, 1950. The amendment was specifically related to the list of scheduled tribes in Arunachal Pradesh. 

Upon recommendation by the Government of Arunachal Pradesh, the amendment modified the list of scheduled tribes in the state. The amendment adds certain new tribes to the list and deletes and substitutes certain others. 

The amendment deleted the ‘Abor’ tribe from the list because another tribe ‘Adi’ in the list is the same as ‘Abor’. 

Then it changed the name ‘Khampti’ to ‘Tai Khampti’.

Thirdly, instead of ‘Mishumi’, ‘Idu’ and ‘Taroan’, the amendment inserted ‘Mishmi-Kaman (Miju Mishmi)’, ‘Idu (Mishmi)’, and ‘Taraon (Digaru Mishmi)’. 

Fourthly, in place of just ‘Momba’, the amendment added ‘Monpa’, ‘Memba’, ‘Sartang’, and ‘Sajolang (Miji)’.

Lastly, in the list ‘any Naga tribes’ were substituted by ‘Nocte’, ‘Tangsa’, ‘Tutsa’, and ‘Wancho’. 

After the amendment, the number of tribes on the list reached 18. The addition of new tribes will not be an extra burden on the Consolidated Fund of India.

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The two Constitutional amendments discussed in this article are related to those who were left behind. One for the backward classes and the other for scheduled tribes. It is another story if we dig into the reasons behind these amendments, specifically the Constitution (One Hundred and Fifth) Act, 2021. 

Reservations of scheduled tribes and scheduled castes have always been more or less straightforward in India. However, the case of reservation of other backward classes has always been a bone of contention for those political parties and politicians who seek to take advantage of reservation as a way to appease a particular group of people. 

While the addition of underrepresented tribes in Arunachal Pradesh to constitutionally recognized tribes will lead to inclusive development of the state, giving states the power to determine socially and economically backward classes might open Pandora’s box. Only time will tell how it will play out. 


[i] Dr. Jaishri Laxmanrao Patil Vs The Chief Minister & Ors., 2021 SCC OnLine SC 362

[ii] Indra Sawhney Vs Union of India, AIR 1993 SC 477

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