Calcutta HC cancels OBC certificates for 77 groups, Mamata rejects order

The Calcutta high court on Wednesday scrapped other backward classes (OBCs) certificates awarded to 77 communities since 2010, an overwhelming majority of them Muslim, and called the classification process illegal, marking a significant verdict that came as a blow to the ruling Trinamool Congress in the middle of ongoing general elections.

The judgment sparked a political controversy with chief minister Mamata Banerjee saying she won’t accept the ruling, and Union home minister Amit Shah accusing the Bengal government of appeasement.

Roughly 500,000 people are likely to be affected by the judgment. The court barred the state from appointing people from these communities with immediate effect but said those appointed so far on the basis of OBC certificates will not be touched.

“This court is of the view that the selection of 77 classes of Muslims as Backward is an affront to the Muslim community as a whole. This court’s mind is not free from doubt that the said community has been treated as a commodity for political ends,” said a division bench of justices Tapabrata Chakraborty and Rajasekhar Mantha.

“Identification of the classes in the aid community as OBCs for electoral gains would leave them at the mercy of the concerned political establishment and may defeat and deny other rights. Such reservation is therefore also an affront to Democracy and the Constitution of India as a whole,” the order added.

West Bengal provides 17% percent OBC reservation, divided into two buckets -- OBC A which has 10% and 81 communities, out of which 56 are Muslims, and OBC B which has 7% and 99 communities, out of which 41 are Muslims.

Muslims are a key demographic in the 17 Lok Sabha seats that will go to the polls in the sixth and seventh phases of the general elections in Bengal. The TMC holds 12of these and the BJP seven.

The court also struck down key sections of the 2012 law that subclassified the OBC pool.

Of the 77 communities, 42 were earmarked for OBC status by the erstwhile Left Front government in 2010, a year before it was ousted by Banerjee’s TMC. Out of these, 41 were Muslims, said the court. The other 35 -- 34 of which were Muslim, according to the verdict -- were included by the TMC government via a notification on May 11, 2012.

The order is a blow to the TMC, which counts Muslims as a key vote base and under whose regime the reservation benefits materialised. Chairman of West Bengal Imams Association Md Yahiya, said: “We don’t think this verdict follows the spirit of the Constitution. Why is everybody concerned only about OBC-A reservation? Why similar questions are being raised on reservation for scheduled caste and scheduled tribe people?”

“The authorities have violated the constitutional provisions and had practised protective discrimination in deviation to the constitutional norms. No data was disclosed on the basis of which it was ascertained that the concerned community is not adequately represented in the services under the government of West Bengal,” said the court.

The high court said the backward classes welfare department of Bengal along with the backward classes commission will place a report before the legislature with recommendations, for inclusion of new classes or for exclusion of the remaining classes, in the state list of OBCs.

The order came on petitions filed by three individuals and Atmadeep, a human rights organisation, between 2010 and 2020.

The petitioners alleged that reservations under both OBC-A (most backward) and OBC-B (backward) categories were awarded to many communities since 2011, when TMC came to power, without any evaluation of their economic status.

“If history and realities of life provide any guide, it would be axiomatic to say that human ingenuity has no limits in finding out the ways of avoiding and circumventing the provisions of law much more in cases where confidence of the people at large rests upon the government. The society at large has a stake in proper application of the yardsticks pertaining to reservation,” said the court.

“The allegations in the instant case are neither skirmishes nor bald, but speak of overt acts indicating non compliance of the statutory provisions and the law as laid down by the Hon’ble Supreme Court.”

The order cited the guidelines in the West Bengal Commission for Backward Classes Act of 1993 which said consultation with the commission is mandatory both for the purposes of subclassification of OBCs and determining the percentage of reservation for the classes or the sub-classes.

“After the commencement of the West Bengal Backward Classes (Other Than Schedule Castes And Schedule Tribes) (Reservation Of Vacancies And Posts) Act of 2012 only the state legislature is empowered to make provisions for reservation in the state services thereunder or under Art. 16(4). The state executive, therefore, is no longer permitted either under the Act of 1993 or even under Art. 16(4) to make provisions for reservation for OBCs in state services,” the order said.

“Article 16(4) of the Constitution has two wings, one is determination of backwardness and the other is whether the concerned class is adequately represented in the services under the State. No reasonable procedure has been followed for determination of such backwardness,” said the order, striking down the state government orders through which the quantum of quotas was determined under OBC-A and OBC-B categories.

In 2010, the Left Front government headed by then chief minister Buddhadeb Bhattacharya announced 10% reservation in state government jobs for “economically, socially and educationally backward” Muslims who come under the OBC-A category.

The 10% reservation in the OBC-A category was based on the recommendations of the National Commission for Religious and Linguistic Minorities whose report was tabled in Parliament in December 2009. At the time, there were 108 communities with an OBC tag, of which 53 were Muslims. Most of these communities were not affected by the order.

The state’s Muslim population stood at 27.01% during the 2011 census and is projected to have increased to around 30% now. After coming to power in 2011, Banerjee included more communities in the OBC lists.

Later in the day, Banerjee asserted that she “will not accept” the order . “The OBC reservation quota introduced by the West Bengal government will continue. We had drafted the bill after conducting a house-to-house survey, and it was passed by the cabinet and the assembly,” she said. “If necessary, we will move a higher court.”

Shah, who was in Bengal to address three BJP rallies, said, “These OBC reservations were done to appease Muslims.”