Reservation Can't Be Based On Religion, Says Supreme Court

While hearing a petition filed by the State of West Bengal challenging the Calcutta High Court decision to quash the OBC classification of 77 communities, mostly belonging to the Muslim religion, the Supreme Court orally remarked that ‘Reservation can’t be given based on religion’. A bench comprising Justice BR Gavai and KV Viswanathan was hearing the matter.

Senior Advocate Kapil Sibal representing the state submitted that the reservation was granted based on the backwardness of the communities instead of religion. He said that the State of West Bengal has a minority population of 27-28 %.

Sibal added that the Andhra Pradesh High Court also struck down the 4 percent reservation for Muslims. However, the Andhra Pradesh High Court’s judgment quashing the reservation for Muslim OBC communities was stayed by the Supreme Court and the matter was pending.

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The Ranganath Commission recommended 10% reservation for Muslims. As for the Hindu community, 66 communities were classified as backward.  The Backward Commission further classified 76 communities within Muslims as backward classes out of which a large number of communities are already there in the Central List. Some others are also a part of the Mandal Commission. The rest is in relation to the Hindu counterparts and Scheduled Castes/Tribes.

He also stated that when the issue of sub-classification came, the inclusion within the Backward Class was done by the Commission. Whereas, the sub-classification was delegated to the Calcutta University (Anthropology Department). This exercise has also been struck down including the provisions of the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012.

When Sibal said whether in principle Muslims are not entitled to reservation, Justice Gavai remarked: “Reservation cannot be on the basis of religion,“ Justice Gavai.

“This reservation is not based on religion but backwardness which has been upheld by the Court. Even for Hindus, its on the basis of backwardness. Backwardness is common to all sections of the society. ,” Sibal said adding that Ranganath Commission has recommended such reservation and that many of those communities are included in the Central OBC list.

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Senior Advocate PS Patwalia for respondents refuted the State’s arguments by saying that the reservation was given without any data or survey and bypassing the Backward Classes Commission. He submitted that soon after a statement was made by the then Chief Minister in 2010, the reservations for the 77 communities were given, without consulting the Commission.

“We have quantifiable data, this affects a larger number of people including students,” Sibal said and sought interim relief highlighting that about 12 lakh OBC certificates have been cancelled as a result of the High Court’s judgment. He submitted that executive orders classifying 66 classes, prior to 2010, which belong to Hindu backward classes were not struck down by the High Court on the ground that they were not challenged despite the fact that the process followed prior to 2010 is the same as the one struck down by the High Court.

During the hearing, the bench asked how could the High Court have struck down the provision (Section 12) of the 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 enabling the State to identify classes.

“Right from Indira Sawhney, it was held that it is the power of the executive to identify and classify. 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?,” Justice Gavai asked.