The Supreme Court on Monday verbally observed that reservation cannot be given based on religion, Live Law reported.
A bench of Justices BR Gavai and KV Viswanathan made the remarks while hearing a petition filed by the West Bengal government against an order of the Calcutta High Court quashing the classification of 77 communities, a majority of them Muslim, under the Other Backward Classes category.
On May 22, the High Court cancelled all Other Backward Classes certificates issued in West Bengal after 2010, saying that “religion indeed appears to have been the sole criterion” for granting the status to the 77 communities.
Subsequently, the state government, along with other petitioners, approached the Supreme Court challenging the decision, The Indian Express reported.
At the hearing on Monday, Senior Advocate Kapil Sibal, for the state government, responded to the court’s verbal observation and submitted that the reservation was not granted based on religion but on the backwardness of the communities. “Backwardness exists in all communities,” he added.
Sibal noted that West Bengal had a minority population of about 27 to 28%, according to Live Law. He also cited the Justice Ranganath Mishra Commission report released in 2007, which said that Dalits in other religions are subjected to the same discrimination as in Hinduism.
He added that 44 out of these 77 communities in West Bengal could be found in the central Other Backward Classes list while the rest were recognised by the Mandal Commission, The Indian Express reported.
Sibal also said that the Calcutta High Court, in its verdict cancelling the certificates, had relied heavily on a ruling in the Andhra Pradesh High Court that had quashed reservations for Muslims under the Other Back Classes category, according to The Indian Express.
He was referring to a 2005 verdict in the Andhra Pradesh High Court that struck down the 5% quota granted to Muslims in the state. This verdict was challenged in the Supreme Court. In January 2006, the Supreme Court refused to stay the entire order and allowed the status quo to remain for educational institutes and government jobs.
Since there was a significant legal question, it also directed that the case be heard by a constitution bench. It is still awaiting a final decision.
On Monday, Sibal noted that the Andhra Pradesh High Court ruling was still awaiting adjudication.
However, Senior Advocate PS Patwalia, representing the respondents, told the bench that the West Bengal government granted the reservation without data or conducting a survey, according to Live Law.
Patwalia also said that the state Backward Classes Commission was bypassed and the quota was granted following a statement made by then Chief Minister Buddhadeb Bhattacharjee in 2010, The Indian Express reported.
Subsequently, the bench asked how the Calcutta High Court could have set aside Section 12 of the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, which enabled the state to classify the categories for reservation.
“Right from Indira Sawhney [judgment], it was held that it is the power of the executive to identify and classify,” Gavai said. “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?”
The court then listed the matter for further hearing on January 7.
At the earlier hearing on August 5, the court asked the state government to file an affidavit explaining the process followed for the classification of the 77 communities under Other Backward Classes, Live Law reported.
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