News Excerpt:
The Calcutta High Court has struck down the Other Backward Class status granted to 77 communities (classes), 75 of which were Muslim, in Bengal since 2010.
Background of the case:
- In its judgment, the High Court noted that in 2010, the West Bengal government issued several similarly-worded notifications.
- These notifications included 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.
- The first challenge in the HC was filed in 2011 because “the declaration of 42 classes as OBCs was based purely on religion”.
- The categorization is not based on any acceptable data, and the survey conducted by the Commission was unscientific and prefabricated.
- In 2012, the West Bengal government classified another 35 classes as OBC, 34 of which were from the Muslim community. This too was challenged in the HC.
- The court noted that "religion indeed appears to have been the sole criterion" for declaring these communities as OBCs."
Observations made by HC in the case:
- The Court held that the Backward Commission plays a vital role in giving effect to Article 16(4).
- It is an integral and indispensable part of the reservation granting process for OBCs by the State.
- The state government must consult the Commission to make a fair and impartial classification, including sub-classification.
- Non-consultation with the Commission by the State would ipso facto negate, nullify, and/or render null and void, the inclusion of any class as OBCs and even their sub-classification or determination of the percentage of reservation by the State.
- The court also held that 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.
Indian Constitution on religion-based reservations
- Article 15 specifically prohibits the state from discriminating against citizens on grounds only of both religion and caste (along with sex, race, and place of birth).
- After the Supreme Court’s judgment in the State of Kerala vs N M Thomas (1975), reservation is considered not an exception to the equality/ non-discrimination clauses of Articles 15(1) and 16(1), but as an extension of equality.
- The crucial word in Articles 15 and 16 is ‘only’ — which 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.
- Some Muslim castes were given reservations not because they were Muslims, but because these castes were included within the backward class, and reservation was given without reducing the quota for SCs, STs, and OBCs by creating a sub-quota within the OBCs.
- The Mandal Commission, following the example set by several states, included a number of Muslim castes in the list of OBCs.
- The Supreme Court in Indra Sawhney (1992) laid down that any social group, whatever its mark of identity if found to be backward under the same criteria as others, will be entitled to be treated as a backward class.
Sacchar and Mishra panel on religion-based reservation:
- The Justice Rajinder Sachar Committee (2006) found that the Muslim community as a whole was almost as backward as SCs and STs, and more backward than non-Muslim OBCs.
- The Justice Ranganath Misra Committee (2007) suggested 15% reservation for minorities, including 10% for Muslims.
- Based on these two reports, the central government in 2012 issued an executive order providing 4.5% reservation of minorities — not just Muslims — within the existing OBC quota of 27%.
- Since the order was issued only a few days before the Assembly elections in UP, Uttarakhand, Punjab, Goa, and Manipur, the Election Commission asked the government not to implement it.
- The AP High Court quashed the order, and the Supreme Court refused to stay the HC’s order.
- Article 341 of the Constitution and the 1950 Presidential Order state that only Hindus are entitled to inclusion within SCs.
- However, Sikhs were included within SCs in 1956, and Buddhists in 1990. Muslims and Christians remain excluded.
