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The Calcutta High Court has struck down a series of orders passed by the West Bengal government between March 2010 and May 2012 by which 77 communities (classes), 75 of which were Muslim, were given reservation under the Other Backward Classes (OBC) category.
A division Bench of Justices Tapabrata Chakraborty and Rajasekhar Mantha found that religion had been the “sole” basis for the West Bengal Backward Classes Commission and the state government to provide reservation, which is prohibited by the Constitution and court orders.
The HC’s order happens to come in the middle of an election campaign in which reservation for Muslims has been a hot-button issue. The BJP, led by the Prime Minister, has accused the opposition of seeking to take away reservation and other benefits from Hindus and giving them to Muslims.
Forty-two beneficiary classes, including 41 Muslim classes, were identified by West Bengal’s previous Left Front government in 2010; the remaining 35, including 34 Muslim classes, were given reservation in 2012, after the Trinamool Congress came to power (in 2011).
In its judgment delivered on May 22, the High Court noted that between March 5 and September 24, 2010, the West Bengal government issued several similarly-worded notifications, including “42 classes, of which 41 were from the Muslim community, as OBCs, entitling them to reservation and representation in Government Employment under Article 16(4) of the Constitution…”.
Also, on September 24 of that year, an order was issued sub-categorising the 108 identified OBCs in the state (66 pre-existing and 42 newly identified) into 56 “OBC-A (more Backward)” and 52 “OBC-B (Backward)” categories.
The first challenge in the HC was filed in 2011 on the ground that “the declaration of 42 classes as OBCs was…based purely on religion”, that “the categorisation is not based on any acceptable data, and that the survey conducted by the Commission was unscientific, and a prefabricated hat was made to fit the head”.
In May 2012, the Mamata Banerjee government classified another 35 classes as OBC, 34 of which were from the Muslim community. This too was challenged in the HC.
In March 2013, the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of vacancies and posts) Act, 2012, was notified. All 77 (42+35) new OBCs were included in Schedule I of the Act. Two petitions were filed challenging the Act.
As with most cases where reservations have been challenged, the HC relied heavily on the Supreme Court’s judgment in Indra Sawhney v Union of India (Mandal judgment).
A nine-judge Bench had held in 1992 that OBCs cannot be identified and given reservation only on the basis of religion. The SC also held that all states must establish a Backward Classes Commission to identify and recommend classes of citizens for inclusion and exclusion in the state OBC list.
In the present case, both the Commission and the government submitted that the Commission had identified the 77 classes based on applications received from citizens, and then recommended their inclusion to the government.
The HC noted that the Commission’s recommendation had been made with “lightning speed” after the then Chief Minister publicly announced a quota for Muslims (in February 2010), without using any “objective criteria” to determine the backwardness of these classes.
“Religion indeed appears to have been the sole criterion for declaring these communities as OBCs”, and the reports that the Commission submitted were meant only to “curtain and hide such religion specific recommendations”, the court said.
“This court’s mind is not free from doubt that the said community has been treated as a commodity for political ends”, and that the 77 classes identified were being treated as a “vote bank”, it said.
The court also struck down portions of West Bengal’s 2012 Act, including (i) the provision that allowed the state government to “sub-classify” OBC reservations into OBC-A and OBC-B categories for “more backward” and “backward” classes respectively, and (ii) the provision allowing the state to amend the Schedule of the 2012 Act to add to the list of OBCs.
The Commission conceded that the government did not consult it before creating the sub-classification within OBC reservations — but argued that such an action was outside its “purview”.
The court held that the state government must consult the Commission to make a fair and impartial classification, including sub-classification.
Sub-classification is meant to address the different levels of deprivation faced by different communities, which the court held could only be done by referring to material collected by the Commission.
