The Calcutta High Court took the nation by surprise on May 22 when it struck down Other Backward Class (OBC) certificates issued by the West Bengal government after 2010. It is estimated that nearly five lakh certificates will stand cancelled as a consequence of this judgement.
The HC struck down OBC certificates granted to 77 classes of persons since 2010, most of which were Muslims and noted that “This Court’s mind is not free from doubt that the said community has been treated as a commodity for political ends.” According to the court, the inclusion of these 77 classes was done as the community is mainly treated as a vote bank.
“Identification of the classes in the said community as OBCs for electoral gains would leave them at the mercy of the concerned political establishment and may defeat and deny other rights,” the judgement said. The court noted that the reservation of this nature was an ‘affront’ to the Indian Constitution and democracy as a whole. However, the court stopped short of taking back jobs and other benefits availed by those in possession of the OBC certificates issued after 2010.
An important aspect that weighed with the court was that the state did not undertake a proper exercise to prove the backwardness of these communities and it appeared to the court that reservation was granted to these communities primarily because they were Muslims.
While West Bengal Chief Minister (CM) Mamta Banerjee refused the accept the judgement, Prime Minister Narendra Modi has hailed the Calcutta HC for this order. In all likelihood, this ruling will be challenged in the Supreme Court by West Bengal.
Considering that such strong words and observations are made by a court of law, one wonders what the judgement was about and why the court came to the conclusion that it did. Moneycontrol explains what transpired in the case and what the judgement was about.
What was the case about?
A batch of Public Interest Litigations (PILs) was filed in the Calcutta HC challenging the process of identification and classification of 77 classes as OBCs in West Bengal. These 77 classes were declared OBC by seven Executive Orders/Memoranda issued between 5th March 2010 and 11th May 2012, by the state. The pleas also challenged the Constitutional validity of some provisions of West Bengal Backward Classes, (Other than SC and ST) (Reservation in Posts) Act of 2012.
According to the judgement, in February 2010 the then Communist government’s chief minister of West Bengal announced a 10 percent reservation for Muslims in government jobs. Shortly thereafter, the state government included 42 classes in the OBC list. Of these 42 classes 41 were from the Muslim community.
In May 2012, after the Trinamool Congress came to power, the government released another notification whereby 35 classes were categorised as backward classes and further sub-categorised into OBC Category A and OBC Category B. 34 of such classes were from the Muslim community.
In March 2012, the state government passed the ‘West Bengal Backward Classes (Other than schedule caste and schedule tribe) (Reservation of vacancies for post) Act 2012. All 77 classes were incorporated into the scheme of this Act.
Some of the Muslim communities classified as OBC during this period include Bhangi, Dhatri/Dai, Gharami, Ghorkhan, Golder, Halsana, Kayal, Naiya, Shikari, Adaldar, Akunji, Bag, Chaprasi, Churihar, Daptari, Dewan, Dabak, Ghazi, Khan, Kolu, Maltya, Mistri, Paik, Pailan, Purkait, Sana, Sarang, Sarkar, Shah, Tarafder, Mouli and Sepai.
The batch of petitions challenged these classifications on the grounds that these classifications were done without a proper exercise to determine the backwardness and also that they were done solely on religious grounds, both of which were bad in law.
Why was it struck down?
Whenever a state intends to provide reservation to a community, it must do so on the aid and advice of a commission appointed by it to conduct a survey and other studies to determine the backwardness of a community. Backwardness is usually determined by a community’s representation in society along with employment and other prospects. The apex court in a catena of judgements has held that a state cannot mechanically grant reservation to a community, it must apply its mind before doing so.
However, the commission’s role is recommendatory only, the ultimate decision on whether or not reservation is to be granted lies with the state government. In this case, the court found that the commission did not conduct a proper study on its own to determine whether these communities needed reservation or not.
The judgement said, “The Commission has not set forth any criteria in the reports, based on which, it has arrived at the conclusion that a surveyed class is backward.” The court noted that one of the communities that was classified as OBC had converted to Islam from Hinduism, however, the commission did not inquire as to why they converted.
The court said, “Most importantly, some of the said classes were enjoying reservation as SC when they were Hindus. The question therefore that would arise is why a class, who is already under the reservation scheme, would convert to the Muslim religion and will get a reservation based on the ground of the class having previously enjoyed reservation. There are therefore serious doubts on the bona fides of the surveys and the recommendation of the Commission.”
The court thus held that it had doubts as to whether any survey at all had been conducted by the commission, and even if it was, then it is clearly inadequate. According to the judgement, “It further appears a pre-identified set of classes who appear to have made applications with a set of huge data. It is difficult to believe that an applicant of a particular community would have access to all such information Admittedly, they possess little or no education at all.” The court thus noted that such data may have been supplied to them by vested interests.
According to the judgement, the real purpose of the commission’s exercise seems to be granting reservation to a particular religion on the pretext of granting reservation to OBCs.
Can reservation be granted solely based on religion?
The court, while noting that it was not concerned with reservation granting reservation to Muslims, identified a pattern whereby 77 classes were notified just after the media announcement by the chief minister of the state. “This Court, in the present case, however, is really concerned with what followed after the filing of such applications, namely whether the Commission has conducted any empirical analysis informed by normative concerns while collecting and analysing the materials,” the court said.
Furthermore, the court noted that the primary consideration for the commission in this case was to make religion-specific recommendations. “To curtain and hide such religion-specific recommendations, the Commission has prepared the reports for the ostensible purpose of granting reservation to the backward classes to hide the real purpose behind such recommendations,” the court said.
Have reservations been struck down in the past?
The Supreme Court and the high courts have in the past struck down reservation granted by states.
For instance, in 2021, the Supreme Court struck down reservation for the Maratha community, holding that it violated the Indira Sawhney judgment by exceeding the 50 percent limit. It further held that the state had not been able to prove that it breached the 50 percent ceiling owing to an ‘extraordinary circumstance’.
Similarly, in 2022, the Supreme Court held Tamil Nadu's reservation for Vanniyars in education and employment within the Most Backward Classes category as unconstitutional. The court observed that the reservation was not supported by empirical data on backwardness.
The Andhra Pradesh HC in 2005 struck down reservation for Muslims in the state noting that the reservation was not backed by empirical data to justify it. The case is still pending in the Supreme Court.
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