Why is it in the News?

The Calcutta High Court has struck down a series of orders passed by the West Bengal government between March 2010 and May 2012 by which 77 communities (classes), 75 of which were Muslim, were given reservation under the Other Backward Classes (OBC) category.

Context:

• In a significant ruling on Wednesday, the Calcutta High Court dismissed all Other Backward Classes (OBC) certificates issued in West Bengal since 2010.
• A division bench of Justice Tapabrata Chakraborty and Justice Rajasekhar Mantha made this decision while addressing a public interest litigation (PIL) that challenged the process of granting OBC certificates.
• The court directed that a new list of OBCs should be created based on the West Bengal Commission for Backward Classes Act of 1993.

What is the Issue With OBC Certificates?

• In 2010, the West Bengal (WB) government issued notifications, on the recommendations of the West Bengal Backward Classes Commission, including 42 classes (41 from the Muslim community) as Other Backward Classes (OBCs), entitling them to reservation and representation in government employment under Article 16(4) of the Constitution.
• Also in 2010, an order was issued sub-categorizing the 108 identified OBCs in the state (66 pre-existing and 42 newly identified) into 56 OBC-A (more Backward) and 52 OBC-B (Backward) categories.
• In 2012, the West Bengal government included 35 classes (34 from the Muslim community) as OBCs.
• In 2013, the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of vacancies and posts) Act 2012 gave recognition to all 77 new OBCs.
• These orders and legislation were challenged in the Calcutta High Court on the grounds that the declaration of classes as OBCs was based purely on religion, the categorization was not based on any acceptable data, and the survey conducted by the Commission was unscientific.

The Calcutta High Court's Ruling on West Bengal's Reservation Policies:

• The court found that religion had been the sole basis for the state government to provide reservation, which is prohibited by the Constitution and court orders.
• The High Court heavily relied on the Supreme Court's judgment in Indra Sawhney v Union of India (Mandal judgment).
  • In 1992, a nine-judge Bench held that OBCs cannot be identified and given reservation solely based on religion.
  • The Supreme Court also held that all states must establish a Backward Classes Commission to identify and recommend classes of citizens for inclusion and exclusion in the state OBC list.
• The High Court noted that the Commission's recommendation had been made with "lightning speed" and without using any objective criteria to determine the backwardness of these classes.
• The court stated that there is no question that the said communities have been used as a political prop for vote bank politics.
• The court struck down some provisions of West Bengal's 2012 Act, including:
  • The provision allowed the state government to sub-classify OBC reservations into OBC-A and OBC-B categories.
  • The provision allows the state to amend the Schedule of the 2012 Act to add to the list of OBCs.
• The court held that sub-classification is meant to address different levels of deprivation faced by different communities and could only be done based on scientific data.
• Since the Commission acknowledged that the government did not consult it prior to sub-classification within OBC, the court ruled that the state government must consult the Commission to create a fair and unbiased classification.

The Position on Religiously-Based Reservations in the Constitution and Court Orders:

The Constitution of India:

• Article 15(1) specifically prohibits the state from discriminating against citizens on grounds only of religion and caste (along with sex, race, and place of birth).
• Article 16(2) specifically prohibits the state from discriminating against citizens on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, in respect of any employment or office under the State.

The Observations of the Supreme Court:

• In M R Balaji (1962), the SC held that while castes among Hindus may be an important factor to take into account when assessing the social backwardness of certain groups or classes of citizens, it cannot be the only test in this regard.
• In E P Royappa vs State Of Tamil Nadu (1973), the SC held that equality is a dynamic concept and cannot be confined within traditional limits.
• In State of Kerala vs N M Thomas (1975), the SC held that the crucial word 'only' in Articles 15 and Article 16 implies that if a religious, racial, or caste group constitutes a weaker section (under Article 46) or constitutes a backward class, it would be entitled to special provisions for its advancement.
• The SC in Indra Sawhney (1992) laid down that any social group if found to be backward under the same criteria as others, will be entitled to be treated as a backward class.

What are the Current Provisions of Reservation?

• The current provisions of reservation in India stem from the Constituent Assembly's decision to provide employment reservations for Scheduled Castes and Scheduled Tribes under Article 16(4A) of the Constitution.
  • Initially approved for a period of 10 years, these reservations have been renewed annually ever since.
  • Notably, Christian and Muslim communities within the Scheduled Castes and Scheduled Tribes do not receive reservation benefits.
• The decision not to extend reservation to religious minorities was influenced by the partition, as reflected in Sardar Vallabhbhai Patel's presentation of a special sub-committee report in 1949, addressing the issues faced by minority populations in East Punjab and West Bengal.
• The committee, which included Nehru, Rajendra Prasad, KM Munshi, and Ambedkar, concluded that the country's conditions had changed to such an extent that "in the context of independent India and the present circumstances, it is no longer appropriate to reserve seats for Muslims, Christians, Sikhs, or any other religious minority."
• They believed that reservations for religious communities "may lead to some degree of separatism and, to an extent, contradict the concept of a secular democratic state."
  • They argued that the fundamental rights of freedom of religion and the right of minorities to maintain their own educational institutions were sufficient safeguards for protecting minorities.
  • However, the Advisory Committee agreed that "the specific situation of the Scheduled Castes would make it necessary to grant them reservation for the originally decided ten-year period."
• Ambedkar attempted to resolve several positions on the caste question by introducing the concept of backwardness and reservation as methods of creating a society beyond caste.

Arguments Related to Religion-based Reservation in India:

Arguments in Favour of Religion-Based Reservations in India:

• Socio-Economic Backwardness: According to the Sachar Committee Report, Muslims in India lag behind other communities in terms of socio-economic indicators such as education, employment, and income.
  • Reservations can help in bridging this gap.
• Constitutional Mandate: The Indian Constitution provides for affirmative action for socially and educationally backward classes irrespective of religious and cultural denomination.
• Ensuring Adequate Representation: Reservations can ensure adequate representation of underrepresented religious groups in employment, education, and other fields.

Arguments Against Religion-Based Reservations in India:

• Secularism: Critics argue that providing reservations based on religion goes against the principle of secularism enshrined in the Indian Constitution, which advocates equal treatment of all religions by the state.
• Undermining National Unity: Religion-based reservations could undermine national unity as it could lead to resentment and division among different communities.
• Economic Criteria: Reservations should be based solely on economic criteria rather than religion, to ensure that benefits reach those who are truly economically disadvantaged, irrespective of their religion.
• Administrative Challenges: Implementing reservations based on religion could pose administrative challenges, such as determining the criteria for identifying beneficiaries and preventing misuse of the system.

Way Forward:

• Socio-Economic Criteria: Instead of religion, reservations could be based on socio-economic criteria, ensuring that benefits reach the most disadvantaged individuals regardless of their religion.
• Empowerment Through Education: Focus on improving educational infrastructure and providing skill development programs to empower the backward communities and enhance their socio-economic status.
• Inclusive Policies: Implement inclusive policies that address the specific needs of the backward religious communities in areas such as education, employment, and healthcare, without resorting to religious-based reservations.
• Dialogue and Consensus: Engage in a dialogue involving all stakeholders to arrive at a consensus to address the socio-economic challenges faced by the various communities, ensuring that any measures taken are in line with constitutional values and principles.

Conclusion

While recognizing the socio-economic disparities faced by various religious communities in India, the emphasis on inclusive policies based on socio-economic criteria emerges as pivotal. By prioritizing education empowerment, promoting dialogue, and fostering consensus, India can navigate towards a more equitable and inclusive society. By steering away from religion-based reservations and focusing on holistic development, India can uphold its constitutional values while addressing the diverse needs of its population.