Reservation can’t be on the basis of religion: Supreme Court on Bengal OBC list

Reservation can't be the basis of religion', the Supreme Court said on Monday while hearing the West Bengal Government’s petition challenging the Calcutta High Court’s order striking down the state government's decision to classify77 castes, mostly Muslims, as OBC.

The observation came from a Bench of Justice BR Gavai and Justice KV Viswanathan after senior counsel Kapil Sibal, representing the West Bengal Government, sought to know if in principle Muslims were not entitled to reservation.

The Bench wondered if the high court could have struck down Section 12 of the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012, which enabled the state to identify backward classes. It deferred the hearing to January 7, 2025.

Sibal asserted that the state government’s decision was based on backwardness and not religion. “Backwardness exists in all communities,” Sibal submitted.

He said the Andhra Pradesh High Court’s judgment quashing the reservation for Muslim OBC communities was stayed by the Supreme Court and the matter was still pending.

Asserting that the state government had quantifiable data, Sibal said it affected a large number of people, including students.

On behalf of the respondents, senior advocate PS Patwalia countered Sibal’s arguments, saying the reservation benefit was extended to the said Muslim groups without any quantifiable data or survey and bypassing the Backward Classes Commission.

The Calcutta High Court had on May 22 quashed the OBC status of several castes in West Bengal granted since 2010, declaring the reservation given to them in services and posts in the state as illegal.

The high court struck down several classes for reservation as Other Backward Classes (OBC) given under The West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012.

“Religion indeed appears to have been the sole criterion” for declaring these communities as OBCs, the high court had said. However, it had clarified that the services of citizens of the struck-down classes, who were already in service or had availed the benefit of reservation or had succeeded in any selection process of the state will not be affected by the order.

The HC had quashed the state’s executive orders classifying several other classes as OBCs from March 5, 2010, to May 11, 2012, in view of the illegality of the reports recommending such classification. The directions will be given prospective effect, it had noted.

The Supreme Court had on August 5 asked the West Bengal Government to furnish quantifiable data on social, economic backwardness and inadequacy of representation in public employment of the castes included by it in the OBC list for extending reservation benefits.

It had issued notices to those who had challenged before the Calcutta High Court the inclusion of 77 castes, mostly Muslims, in the Other Backward Classes (OBC) list. It had also issued notice on the West Bengal Government’s application seeking to stay the high court’s verdict and directed the West Bengal Government to file an affidavit explaining the process followed for classification of 77 castes as OBCs.

The top court had also sought to know the nature of the survey; if there was a lack of consultation with the Commission (state backward commission) in respect of any of the 77 communities designated as OBCs; and if any consultation was done by the state for the sub-classification of the OBCs.