Why in News?

A series of orders passed by the West Bengal government, giving reservation to 77 communities/classes (75 of which were Muslim) under the Other Backward Classes (OBC) category, has been quashed by the Calcutta High Court (HC).

However, the court observed that those who got employment using the certificates and were already in service through such reservation would not be affected by the order.

The ruling from the HC coincides with the midst of an election campaign where Muslim reservations have been a contentious topic. 

What’s in Today’s Article?

• The Orders Passed by the WB Govt to Grant Reservation on the Basis of Religion
• The Orders Challenged in the Calcutta HC
• What was the Ruling Given by the Calcutta HC?
• What is said Regarding Religiously-Based Reservations in the Constitution and Court Orders?

The Orders Passed by the WB Govt to Grant Reservation on the Basis of Religion:

• In 2010, the WB government issued notifications (on the recommendations of the West Bengal Backward Classes Commission), including 42 classes (of which 41 were from the Muslim community) as OBCs.
  • Also, the notifications entitled them to reservation and representation in Government Employment under Article 16(4) of the Constitution.
• In the same 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.
• In 2012, the WB government included 35 classes (of which 34 were from the Muslim community) as OBCs.
• In 2013, the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of vacancies and posts) Act 2012 gave recognition to all 77 new OBCs.

The Orders Challenged in the Calcutta HC:

• The above orders/ legislation of the WB govt was challenged in the HC on the grounds that -
  • The declaration of classes as OBCs was based purely on religion.
  • The categorisation is not based on any acceptable data.
  • The survey conducted by the Commission was unscientific.

What was the Ruling Given by the Calcutta HC?

• The court found that religion had been the sole basis for the state government to provide reservation, which is prohibited by the Constitution and court orders.
• The HC relied heavily on the Supreme Court’s judgment in Indra Sawhney v Union of India (Mandal judgment).
  • In 1992, a nine-judge Bench held 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.
• The HC noted that the Commission’s recommendation had been made with “lightning speed” and without using any “objective criteria” to determine the backwardness of these classes.
• There is no question in this court's mind that the said communities have been used as a political prop for vote banks politics.
• The court also struck down some provisions of WB’s 2012 Act, including
  • The provision that allowed the state government to sub-classify OBC reservations into OBC-A and OBC-B categories, and
  • The provision allowing the state to amend the Schedule of the 2012 Act to add to the list of OBCs.
• The court held that sub-classification is meant to address the different levels of deprivation faced by different communities and could only be done on the basis of scientific data.
• Since the Commission acknowledged that the govt did not consult it prior to sub-classification within OBC, the court ruled that the state govt must consult the Commission for creating a fair and unbiased classification.

What is said Regarding Religiously-Based Reservations in the Constitution and Court Orders?

• The Constitution of India:
  • Article 15 (1) specifically prohibits the state from discriminating against citizens on grounds only of both religion and caste (along with sex, race, and place of birth).
  • Article 16 (2) specifically prohibits the state from discriminating against citizens on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, in respect of any employment or office under the State.
• The Observations of SC:
  • In M R Balaji (1962), the SC held that while castes among Hindus may be an important factor to take into account when assessing the social backwardness of certain groups or classes of citizens, it cannot be the only test in this regard.
  • In the E P Royappa vs State Of Tamil Nadu (1973), the SC has held that equality is a dynamic concept and cannot be confined within traditional limits.
  • In the State of Kerala vs N M Thomas (1975), the SC held that the crucial word ‘only’ in Articles 15 and 16 implies that -
    • If a religious, racial, or caste group constitutes a weaker section (under Article 46) or constitutes a backward class,
    • It would be entitled to special provisions for its advancement.
  • The SC in Indra Sawhney (1992) laid down that any social group, if found to be backward under the same criteria as others, will be entitled to be treated as a backward class.