New Delhi: From the Gazis to the Shikaris, the OBC (Other Backward Classes) status of more than 37 Muslim communities was set aside by the Calcutta High Court earlier this week, citing serious irregularities by the West Bengal government in the process of their inclusion in the state backward classes list.
The bench of justices Tapabrata Chakraborty and Rajasekhar Mantha was hearing a set of writ petitions challenging the series of orders passed by the West Bengal government to include these communities in the OBC category.
In a detailed order, the court invalidated all OBC certificates issued in West Bengal after 2010, and also removed 37 classes of Muslims from Schedule-I of the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act 2012, taking away their OBC status.
In 2010, the then Chief Minister Buddhadeb Bhattacharjee had announced 10 percent reservation for the Muslims and had soon passed orders to recognise them as OBC.
The crux of the legal battle lies in the classification of communities as OBC, given that the recommendations of the Backward Classes Commission were never taken, and amendments were introduced to increase the powers of the state government.
Article 16(4) of the Constitution empowers the state to provide reservations to inadequately represented backward classes. “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State,” it reads.
In a 1992 decision in the Indra Sawhney case, also known as the Mandal verdict, the Supreme Court mandated that the Centre and all states constitute a commission to identify backward classes. It was intended to act as a safeguard for rightful classification.
Soon after, the commission in West Bengal was set up to identify backward classes, make recommendations, and even entertain complaints of any over-inclusion or under-inclusion in the list of communities receiving the benefit of reservation.
These classifications have now been set aside, with the caste certificates cancelled, including the invalidation of the 2012 law, which had approved the same. The High Court’s decision can be challenged in the Supreme Court.
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The Sachar Committee report
In the proceedings before the court, the state government placed substantial reliance on the Sachar Committee report to support its claim that the Muslim community is, in fact, backward to justify the inclusion.
In 2005, the then Prime Minister Manmohan Singh had established this special committee to study the socio-economic conditions of Muslims under the chairmanship of former Delhi High Court Chief Justice Rajinder Sachar.
The claim of the state government was that since the Sachar Committee report clearly established that Muslims were backward, the commission’s view was not required.
However, the High Court said that the report was a collection of data, and had never been relied on for classifying OBCs.
“The Sachar Committee report is a collection of data, which neither the State nor the Commission nor even the Central Government has ever relied upon, while classifying and sub-classifying the OBCs,” the court noted.
It also said that the data collected by the committee was already outdated in 2010, when the state made the reservations, as the report was almost four years old.
The court observed that this report was not under Article 340 of the Constitution, which requires the President to set up such a body. This meant that the Sachar Committee did not enjoy any constitutional status, and was merely an executive (government) body.
‘Abuse of power’
In order to place a community as a backward class, it is mandatory for the state government to consult the commission. The failure to do so would amount to a fraud on the constitutional power.
“Such exclusion of the role of the Commission, and arrogating to itself the power to ignore the Commission at its own sweet will, whim and fancy therefore tantamounts to an exercise of fraudulent legislative power and consequently a fraud on Constitutional power under Article 16(4),” the court said.
In 2010, the state government introduced an amendment to Section 9 of the West Bengal Commission for Backward Classes Act 1993, which significantly reduced the value of the commission’s advice, which was only binding in limited circumstances now.
The court noted that merely three days after this amendment was brought in, the notification for inclusion of the new communities was introduced. Since the amendment was specifically introduced to enable this action, it amounted to an abuse of power.
“Therefore before bypassing the Commission as regards the sub-classification, the State brought into force the said amendment to legitimise an otherwise illegal action. The amendment to Section 9 brought by the State is, therefore, a fraud on power if not a fraud on the Constitution,” observed the court.
“…The State has been left with the ominous discretion and uncanalised power of choosing when to consult the Commission and when not to.”
The Calcutta High Court also noted that the non-addition of the communities affected was not required to determine the issue as reservation could not be called a fundamental right. This means that no citizen has the right to demand reservation as a claim, and therefore addition of the other communities was not required.
“Therefore, no class of citizens has the right to continue to enjoy reservation for eternity… It is, therefore, held that the right to reservation and to continue to enjoy reservation does not crystallise as a right much less a fundamental right, even after the grant of reservation to a class,” the high court said.
Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint.
(Edited by Mannat Chugh)
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