Calcutta High Court has struck down a series of orders passed by the West Bengal government between March 2010 and May 2012 by which 77 communities (classes), 75 of which were Muslim, were given reservation under the Other Backward Classes (OBC) category. A division Bench of Justices Tapabrata Chakraborty and Rajasekhar Mantha found that religion had been the “sole” basis for the West Bengal Backward Classes Commission and the state government to provide reservation, which is prohibited by the Constitution and court orders. REFERENCE TAKEN BY HC As with most cases where reservations have been challenged, the HC relied heavily on the Supreme Court’s judgment in Indra Sawhney v Union of India (Mandal judgment). A nine-judge Bench had held in 1992 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 CONTRAVENTION IN WB’S CASE In the present case, both the Commission and the government submitted that the Commission had identified the 77 classes based on applications received from citizens, and then recommended their inclusion to the government. The HC noted that:
  • The Commission’s recommendation had been made with “lightning speed” after the then Chief Minister publicly announced a quota for Muslims (in February 2010), without using any “objective criteria” to determine the backwardness of these classes.
  • Religion indeed appears to have been the sole criterion for declaring these communities as OBCs, and the reports that the Commission submitted were meant only to “curtain and hide such religion specific recommendations”.
WHAT ELSE DID THE HC SAY? The court also struck down portions of West Bengal’s 2012 Act, including
  1. The provision that allowed the state government to “sub-classify” OBC reservations into OBC-A and OBC-B categories for “more backward” and “backward” classes respectively, and
  2. The provision allowing the state to amend the Schedule of the 2012 Act to add to the list of OBCs.
The Commission conceded that the government did not consult it before creating the sub-classification within OBC reservations — but argued that such an action was outside its “purview”. The court held that the state government must consult the Commission to make a fair and impartial classification, including sub-classification.