SC raises questions on Calcutta HC order that refused OBC tag to 77 communities
The bench asked whether misuse of a provision providing for reservation could be a ground to set it aside
NEW DELHI: The Supreme Court on Monday raised questions about the validity of the Calcutta high court order in May this year that set aside the West Bengal government’s decision to classify 77 communities, mostly Muslims, as other backward classes (OBC) and agreed to consider on January 7 whether reservation to these classes can be permitted this year
A bench comprising justices Bhushan R Gavai and KV Viswanathan said, “Can misuse of a provision providing for reservation be a ground to set it aside? We can understand the high court saying that the classification (of the 77 communities as OBCs) was bad but on that ground, how can it be set aside.”
The court, which was hearing an appeal by the Mamata Banerjee government against the May 22 high court decision, was referring to section 5(a) of the West Bengal Backward Classes (Reservation of Vacancies in Services and Posts) Act 2012 that empowered the state government to allocate 17% posts in government posts to members of OBCs.
The court posted the matter for January 7 to consider arguments in detail to decide if any interim relief could be given to these communities in admissions this year.
Senior advocate Kapil Sibal appearing for the state along with advocate Astha Sharma said the HC order was “bizarre”. “This goes against what is decided by this court in the past. The Schedule containing the list of OBCs can be amended as this power is with the government. How can it be struck down? This judgment needs to be stayed.”
The bench said, “From Indira Sawhney judgment (decided in 1991 by a nine-judge bench) it is held that the executive has the authority to identify and classify backward classes. The high court should not have struck down the enabling provision in the 2012 Act that gives power to the state to make such classification.”
Senior advocate PS Patwalia appearing for the petitioners in the high court said that the state failed to follow the procedure mandated under law to extend reservation to those communities who belonged to a particular religion. He said that in February 2010, chief minister Mamata Banerjee gave a statement to provide reservations to Muslims in state services. This was followed by a series of orders passed between March 2010 and May 2012 extending reservations to 77 communities.
Senior advocate Rakesh Dwivedi appearing for the West Bengal Commission for Backward Classes pointed out that these communities were recommended to be included in the OBC list following a survey conducted by the commission.
While issuing notice on the state’s appeal in August, the top court asked the state whether it had quantifiable data to indicate the backwardness of these communities. This became necessary as the high court order said that the state’s decision was guided by vote politics., “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. Such reservation is therefore also an affront to democracy and the Constitution of India as a whole,” the high court said in its order.
The bench told Sibal, “Reservation cannot be on the basis of religion. Without quantifiable data, we cannot proceed.” Dwivedi informed the court that the reservation under challenge has undone the exclusion based on religion. He gave the instance of Hindu barbers in the state who enjoyed Scheduled Caste (SC) status. However, when they convert to another religion, they lose the status as the Presidential List of Scheduled Castes only recognizes Hindus, Buddhists and Jains. “This is an exercise by which exclusion based on religion has been undone,” he submitted.
Sibal said that the matter required an urgent hearing as the academic year was about to pass and the high court renders all caste certificates issued since 2010 to be invalid. The high court verdict, however, protected those who were already in service based on the certificate issued by the state.
The 17% OBC reservation in the state is divided into two buckets – OBC A which has 10% and 81 communities, out of which 56 are Muslims, and OBC B which has 7% and 99 communities, out of which 41 are Muslims. The state claimed that most of these communities are recognised as OBCs in the Central list and even in neighbouring states.
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