There can be no reservation on the basis of religion, the Supreme Court made an oral comment on Monday.
A bench of Justices BR Gavai and KV Viswanathan was hearing an appeal challenging a Calcutta High Court order that had quashed the verdict. Decision of West Bengal Govt 77 communities, mostly Muslims, to be classified as Other Backward Classes (OBC) so as to enable them to get the benefits of reservation.
“Reservation cannot be based on religion,” said Justice Gavai, while senior advocate Kapil Sibal sought to justify the state government’s decision.
Sibal said that in striking down the provisions of the ‘West Bengal Backward Classes (other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012’, the Calcutta High Court relied heavily on the Andhra Pradesh High Court. Decision to abolish reservation for Muslim OBCs. He added that the Andhra Pradesh High Court decision was stayed by the Supreme Court and is yet to be finalised.
The senior advocate said that the reservation provided by the state “is not based on religion but is backward which has been upheld by the courts. All communities have backwardness.” He said the Justice (Retired) Ranganath Mishra Commission was in favor of reservation for Muslims and added that 44 of those communities were included in the Central OBC list and the rest were recognized by the Mandal Commission.
Sibal said the High Court judgment also had the effect of striking down the sub-categorization of OBCs. Part of the argument, he added, is that practice is not good.
Justice Gavai pointed out that it “requires quantifiable data” to show backwardness. Sibal said “we have quantitative data” and added that it “affects a large number of people, including students.”
The senior advocate pointed out that nearly 12 lakh OBC certificates have been canceled as a result of the High Court’s decision.
Opposing Sibal’s contention, senior advocate PS Patwalia – who appeared for the respondents – said that no survey was conducted and there was no data to find out what the high court would follow. He said that the State Backward Classes Commission was bypassed and reservation was given after the then Chief Minister made a statement in 2010. He said the state can do it by the high court but only after following due process.
The bench, meanwhile, wondered how the Calcutta High Court could set aside Section 12 of the Act which enables states to classify. Justice Gavai said that “it was recognized from the Indira Sahni (judgment) itself that it is the power of the executive to identify and classify.”
He further questioned, ‘How can the provision in the statute giving authority to the state be repealed? Is abuse of the provision likely enough to strike it down?”
“It was an enabling provision,” weighed Justice Viswanathan. “Yes. Sub-classification without any consultation can be considered bad but how can a statutory provision be struck down?” asked Justice Gavai.
Sibal pressed for interim relief but the court did not grant any permission and fixed the case for another hearing on January 7, 2025.