New Delhi: The Supreme Court on Monday observed that reservation cannot be given based on religion. The matter came up before a bench comprising justices BR Gavai and KV Vishwanathan. The apex court was hearing a petition filed by West Bengal challenging the decision of the Calcutta High Court to quash the Other Backward Class (OBC) classification of 77 communities, mostly belonging to Muslim religion.
During the hearing, senior advocate Kapil Sibal, representing the West Bengal government, argued that this year onwards the state could not do anything as there is no reservation in admissions, no reservation in employment, and no reservation in promotion and scholarship while criticising the High Court’s decision. Sibal said that the reservation was granted not based on religion but based on the backwardness of the communities. Sibal urged the bench to pass an interim order in the matter.
Justice Gavai observed that reservation cannot be based on religion. Sibal clarified that this reservation is not based on religion but backwardness which has been upheld by the court, and even amongst the Hindus it is on backwardness. He insisted that backwardness is common to all sections of the society. “The ground of religion is not an issue here. It happens that they belong to a religious community but they are backward”, said Sibal.
The apex court was informed that Ranganath Commission has recommended such reservation and that many of those communities are included on the central OBC list. Sibal contended the judgment of the Andhra Pradesh High Court quashing the reservation for Muslim OBC communities was stayed by the Supreme Court and the matter was pending.
Senior advocate PS Patwalia, representing the respondents, opposed the arguments made by Sibal against the high court's decision. Patwalia pressed that the reservation was given without any data or survey and bypassing the backward classes commission.
Sibal said there is quantifiable data, and added that the commission says include such classes. Sibal said the commission recommended and the state government notified and asked how it could be struck down by the high court? “Whatever the commission has told us (the state did)….but the Act was struck down. This is completely wrong”, said Sibal.
The bench queried, how could high court struck down the provision (Section 12) of West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012 when it was a provision, which enables the state government to identify classes.
The bench said, "Right from Indira Sawhney (Mandal Commission judgment), it was held that it is the power of the executive to identify and classify….”. Justice Gavai queried, how can a provision in the statute be struck down which grants the state the power? Is it possible misuse of a provision, a ground enough to strike it down?
The apex court has scheduled the matter for further hearing on January 7, 2025.
On August 5, a bench led by former CJI DY Chandrachud directed the West Bengal government to explain the basis of its decision to designate 77 communities, most of which were Muslims, as the other backward classes (OBC). The apex court asked the state government to bring on record the nature of the survey which was carried out on the aspects of social and educational backwardness, and inadequacy of representation in the services of the state.
