SC observation puts focus on religion-based quota. How states have dealt with Muslim reservation

SC made observation while hearing West Bengal govt's challenge to Calcutta HC order striking down grant of OBC status to 37 classes, predominantly from Muslim community.

Supreme Court of India | Suraj Singh Bisht | ThePrint

New Delhi: Did the Calcutta High Court err in striking down Mamata Banerjee government’s decision to grant OBC status to 37 classes, which in turn, made them eligible to avail of quotas? This was the central question before a two-judge bench of the Supreme Court which orally remarked that reservations cannot be given on the basis of religion.

The top court’s observation could affect the status of five lakh Other Backward Classes (OBC) certificates issued in West Bengal.

A bench of Justices B.R. Gavai and K.V. Viswanathan made the observation Monday on a challenge by the West Bengal government to a Calcutta HC order from 22 May, 2024, cancelling all OBC certificates issued in the state since 2010 while noting that “religion indeed appears to have been the sole criterion” for declaring 77 classes, predominantly Muslims, as OBCs. The matter will be taken up on August 27 next year.

Article 16(4) of the Constitution provides that the State can make any provisions for reservation of appointments or posts in favour of any backward class of citizens which, in its opinion, is not adequately represented in the services.

Here, ThePrint analyses the status of reservations for Muslims across various states, and the genesis of the current challenge before the top court.

What was Calcutta HC order

On 22 May, a division bench of Justices Tapabrata Chakraborty and Rajasekhar Mantha of the Calcutta HC struck down the OBC status granted to 37 classes in West Bengal while cancelling all OBC certificates issued by the All India Trinamool Congress government since 2010 under the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012.

Terming the move an affront to democracy and the Constitution, the high court ruled, “This court’s mind is not free from doubt that the said community has been treated as a commodity for political ends. This is clear from the chain of events that led to the classification of the 77 classes as OBCs and their inclusion to be treated as a vote bank.”

Noting that the West Bengal Commission for Backward Classes acted “in undue haste” and with “lightning speed” in recommending the classification of the 77 classes to make the public announcement of the then chief minister a reality, the high court said, “…The authorities have violated the constitutional provisions and had practiced protective discrimination in deviation to the constitutional norms. No data was disclosed on the basis of which it was ascertained that the concerned community is not adequately represented in the services under the Government of West Bengal.”

While the plea challenged OBC status for 77 classes, the court cancelled OBC classification of 37 communities, under the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012.

“Section 16 of the 2012 Act, is struck down since it empowers the State executive to amend any schedule of the Act of 2012 including Schedule I. Consequently, the 37 classes included in the exercise of Section 16 by the State executive, are struck out from Schedule–I of the Act of 2012,” it said. 

In doing so, the division bench also took note of the petitioners’ submissions that the West Bengal Commission for Backward Classes had not conducted any proper inquiry while inviting applications for inclusion of groups in the lists, and even after the supposed preparation of these lists, no notification was issued inviting objections from the public.

How issue resurfaced before SC

The oral observation in question was made by the Supreme Court while deciding the question of religion-based quotas and their constitutionality. 

In the present case, West Bengal government filed a petition challenging the Calcutta HC order, which, in effect, rendered OBC caste certificates of nearly five lakh persons void.

Appearing on behalf of the state government, Senior Advocate Kapil Sibal argued that the state government’s decision to bring in such reservations was based on the community’s backwardness, rather than on the basis of religion and that this has been recognised by the courts. During Monday’s hearing, Sibal also argued that the Calcutta HC relied primarily on the Andhra Pradesh HC order striking down reservations for Muslims.

Andhra Pradesh

In 2004, the Y.S. Rajashekhara Reddy-led Congress government in Andhra Pradesh issued a Government Order (GO) directing the Commissionerate of Minorities Welfare to assess the “socio-economic and educational conditions of Muslim community in the state”.

The Commissionerate wrote back in July of that year, recommending 5 percent reservation for Muslims—a recommendation the government implemented through an ordinance.

However, a five-judge bench of the Andhra Pradesh HC struck down the quota in September, 2004, saying it was brought without being referred to the Backward Classes Commission and that it allowed quotas to Muslims as a whole, without a “creamy layer”.

In January 2006, the top court stayed the operation of the Andhra Pradesh HC ruling temporarily, by passing an interim stay. It also referred the matter to a bigger, Constitution bench, which is yet to conclusively decide the issue.

Meanwhile, the government in October 2005 replaced its ordinance with legislation (Andhra Pradesh Reservation of Seats in the Educational Institutions and of Appointments or Posts in the Public Services under the State to Muslim Community Act, 2005), again introducing a 5 percent quota for Muslims. Only, this time, the Backward Classes Commission had recommended that the quota be applicable for the entire Muslim community.

In November that year, the act was challenged in the high court, on grounds that it was unconstitutional, defective and lacked a scientific basis. Eventually striking down the act, in 2010, a seven-judge bench said all Muslims cannot be classified as backward.

Subsequently, the state government set up a committee led by former IAS officer P.S. Krishnan to decide the quotas for Muslims, which, in July 2007, submitted its final report suggesting that the government provides only 4 percent reservation to 15 backward groups among Muslims. When this issue was challenged before the Andhra Pradesh HC, it resulted in the 2010 order striking down the 4 percent reservation for Muslims. 

As of now, Muslims in Telangana and Andhra Pradesh continue to avail the benefit of 4 percent reservation in education and employment. However, such reservations remain diluted and are given within the existing reservations for OBCs in the state.

Kerala

According to the Kerala Public Service Commission, the 40 percent reservation for OBCs in the state is distributed among different groups.

For instance, when it comes to direct recruitment to posts in the Kerala Last Grade Service, 10 of 40 posts have been reserved for Muslims.

Similarly, when it comes to direct recruitment for posts other than in the Kerala Last Grade Service, of every 40, 12 posts are reserved for Muslims.

Karnataka

In Karnataka, Muslims are entitled to 4 percent reservation in 2B backward class category, in matters of education and government jobs. This is given from within the existing 32 percent quota for OBCs. In April this year, the National Commission for Backward Classes (NCBC) said, “Under Category II-B, all Muslims of Karnataka are covered.”

Last year, however, the then Basavaraj Bommai-led BJP government redistributed the 4 percent quota for Muslims equally among Vokkaligas and Lingayats–both dominant communities, making up roughly 15 and 17 percent of the state’s population, respectively.