There cannot be any reservation on the basis of religion, the Supreme Court remarked orally on Monday.
A bench of Justices BR Gavai and K V Viswanathan was hearing appeals challenging the Kolkata High Court order which nullified the West Bengal government’s decision to classify 77 communities, mostly Muslim, as Other Backward Class (OBC) so as to enable them to avail of reservation benefits.
“Reservation cannot be on the basis of religion,” Justice Gavai said as Senior Advocate Kapil Sibal sought to justify the state government’s decision.
Sibal said that in striking down provisions of the ‘West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012’, the Kolkata High Court had relied heavily on an Andhra Pradesh High Court ruling which quashed the reservation for Muslim OBCs. He added that the Andhra Pradesh High Court’s ruling was, however, stayed by the Supreme Court and is still pending final adjudication.
The senior counsel said the reservation provided by the state “is not based on religion but backwardness which has been upheld by the Court. Backwardness exists in all communities.” He said the Justice (retired) Ranganath Mishra Commission had favoured reservation for Muslims and added that 44 of those communities figure in the Central OBC list while the rest are recognised by the Mandal Commission.
Sibal said the high court judgment also had the effect of striking down the sub-classification of OBCs. He added that part of the argument was that the exercise was not done properly.
Justice Gavai pointed out that it “requires quantifiable data” to show backwardness. Sibal said “We have quantifiable data” and added that it “affects larger number of people including students.”
The senior counsel pointed out that about 12 lakh OBC certificates have been cancelled as a result of the high court ruling.
Countering Sibal’s arguments, Senior Advocate P S Patwalia – who appeared for the respondents – said the high court found that no survey was done to find out backwardness and there was no data. He said the state Backward Classes Commission was bypassed and the reservation was granted after a statement was made by the then chief minister in 2010. He said the high court had said that the state could do it but only after following due procedure.
The bench, meanwhile, wondered how the Kolkata High Court could have set aside Section 12 of the Act which enables the state to classify. Justice Gavai said that “right from Indira Sawhney (judgment), it was held that it is the power of the executive to identify and classify.”
He further asked, “How can a provision in statute be struck down which grants the state the power? Is possible misuse of a provision a ground enough to strike it down?”
“It was an enabling provision,” Justice Viswanathan weighed in. “Yes. Sub-classification can be held bad for no consultation but how can a statutory provision be struck down?,” asked Justice Gavai.
Sibal pressed for interim relief but the court did not grant any and fixed the matter for hearing next on January 7, 2025.