Centre terms UP order on OBCs unconstitutional

Union minister Thawar Chand Gehlot

The Centre on Tuesday said the Bharatiya Janata Party- led Uttar Pradesh governments move to include 17 communities belonging to Other Backward Classes (OBC) in the Scheduled Castes (SC) list was not in accordance with the Constitution as only the Parliament has the right to do so.

“This is not proper,” said Social Justice and Empowerment Minister Thawar Chand Gehlot in the Rajya Sabha after the matter was raised by Bahujan Samaj Party (BSP) member Satish Chandra Misra during the Zero Hour.

The Uttar Pradesh government had on June 24 directed district magistrates and commissioners to issue caste certificates to 17 OBCs – Kashyap, Rajbhar, Dhivar, Bind, Kumhar, Kahar, Kewat, Nishad, Bhar, Mallah, Prajapati, Dhimar, Batham, Turha, Godia, Manjhi and Machua.

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Gehlot said if the UP government wants to go ahead with its proposal it should follow procedure and send a proposal to the Centre. “We would then consider it,” he said. Gehlot added that the UP government’s order was not in accordance with the Constitution. He asked the UP government not to issue certificates based on the order else the matter may go to court.

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The minister, who is also leader of the Rajya Sabha, said shifting of one category to another caste category is the right of Parliament. In the past too, similar proposals were sent to Parliament, but not agreed upon, he noted. Gehlot further said the state government should have followed proper procedure.

Rajya Sabha chairman M Venkaiah Naidu asked Gehlot to advise the state government to follow due process. Raising the issue through a Zero Hour mention, Misra said under Article 341 sub clause (2) of the Constitution, the power to make changes in the SC list lies only with the Parliament.

“Even President (of India) does not have the power to tinker, alter or make changes (in the list),” he said, adding these 17 castes will neither get benefits meant for OBCs nor SCs since a state government has no power to make any alteration to the SC list. He said the BSP was in favour of including 17 castes in SC but only after following prescribed procedure and increasing SC quota proportionately.

“The power of Parliament cannot be upsurged by a state,” he said. The BSP leader wanted the Centre to issue an advisory to the Uttar Pradesh government to withdraw the “unconstitutional order” as it is harming castes.

The BJP government in UP is not the first to move on the 17 most backward castes in the OBC list. In 2005, the Samajwadi Party (SP) government under Mulayam Singh Yadav passed the first order to include 11 of these castes but the order was stayed and the proposal sent to the Centre.

Subsequently, the BSP government under Mayawati quashed the notification. The BSP later said these castes could be included in the SC list provided the SC quota is increased.

The SP government under Akhilesh Yadav cleared the inclusion proposal ahead of the 2017 Assembly elections but it was challenged and is in court. Misra said Article 341 provides that the President specify castes, races or tribes or parts of or groups to be Scheduled Castes after Parliament may by law include or exclude from the list of Scheduled Castes. The move by the Adityanath government comes ahead of by- elections to 12 Assembly seats in the state.

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