‘Reservation can’t be on basis of religion’: SC on plea challenging Calcutta High Court order on OBC classification

The West Bengal government and other petitioners moved the SC after the Calcutta HC, on May 22, cancelled all OBC certificates issued by the state since 2010, saying “religion indeed appears to have been the sole criterion” for granting OBC status to the 77 communities.

Monday, as Senior Advocate Kapil Sibal sought to justify the state government’s decision, Justice Gavai observed: “Reservation cannot be on the basis of religion.”

Responding, Sibal said West Bengal’s decision “is not based on religion but backwardness, which has been upheld by the Court”. “Backwardness exists in all communities,” he said.

When Justice Gavai pointed out that it “requires quantifiable data” to show backwardness, Sibal said “we have quantifiable data” and added the issue “affects a larger number of people including students.”

According to Sibal, in striking down provisions of the ‘West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012’, the Calcutta HC had relied heavily on an Andhra Pradesh HC ruling which quashed the reservation for Muslim OBCs.

However, he added, the Andhra Pradesh HC ruling was stayed by the Supreme Court and is still pending final adjudication.

Sibal’s reference was to the Andhra HC’s November 2005 decision striking down 5 per cent quota to Muslims in the state. The HC verdict was challenged before the SC which, in January 2006, refused to stay the operation of the entire HC order and allowed a status quo to continue vis a vis educational institutes and government jobs. Considering the substantial question of law involved, the SC also directed that the matter be placed before a Constitution Bench. It is pending final adjudication.

In Kerala, the entire Muslim community has been classified as OBC whereas in Tamil Nadu, they were granted 3.5 per cent reservation.
While defending the Bengal government’s decision granting OBC status to the 77 communities, Sibal also said the Justice Ranganath Mishra Commission had favoured reservation for Muslims (as well as Dalit Christians). Of these 77 communities in Bengal, he said, 44 figure in the Central OBC list while the rest are recognised by the Mandal Commission.

Countering Sibal’s arguments, Senior Advocate P S Patwalia – who appeared for the respondents – said the Calcutta HC found that no survey was done to find out backwardness and there was no data. He said the state Backward Classes Commission was bypassed and the reservation was granted after a statement was made by the then Chief Minister (Buddhadeb Bhattacharjee) in 2010. He said the HC had said that the state could do it but only after following due procedure.

The bench, meanwhile, wondered how the Calcutta HC could have set aside Section 12 of the Act which enables the state to classify.

Justice Gavai said that “right from Indira Sawhney (judgment), it was held that it is the power of the executive to identify and classify.” He further asked, “How can a provision in statute be struck down which grants the state the power? Is possible misuse of a provision a ground enough to strike it down?”

“It was an enabling provision,” Justice Viswanathan weighed in. Justice Gavai said, “Yes. sub-classification can be held bad for no consultation but how can a statutory provision be struck down?”.

Sibal pressed for interim relief but the SC did not grant any and fixed the matter for hearing next on January 7, 2025.