The Supreme Court on Monday orally observed that reservations in education and jobs cannot be granted based on religion.
It also refrained from granting an interim stay on Calcutta High Court’s May 21 judgment of striking down the state’s decision to classify 77 communities as OBCs for quota in education and jobs.
The high court quashed the reservations on a batch of petitions which had challenged them on the ground that they were intended to appease Muslims, who had allegedly cornered a major chunk of the OBC quota.
“Reservation cannot be on the basis of religion,” Justice B.R. Gavai, heading the bench, told senior advocate Kapil Sibal, appearing for the Bengal government during a brief hearing on the issue.
Sibal defended the state’s decision while clarifying that the reservation was based on the backwardness of the various communities and not on the basis of any
particular religion.
“Yes, some of the beneficiaries happen to be of the religion but they are backward. It’s based on backwardness,” Sibal told the bench.
While pleading for the interim stay of the high court judgment, the senior counsel said: “Lives are at stake. So many appointments
are on hold...”
Sibal submitted that Calcutta High Court had relied on an Andhra Pradesh High Court judgment while striking down the Bengal law, despite the apex court earlier staying the high court judgment. Andhra Pradesh High Court, too, had earlier quashed reservation granted by the state for Muslims on the ground that the Constitution does not permit religion-based
reservation.
According to the Bengal government, it had carried out elaborate exercises in identifying the various communities based on their backwardness and the State Backward Classes Commission had conducted meetings and visited several areas before sub-classifying the groups for the purpose of reservation benefits.
Justice Gavai, however, agreed with Sibal’s submission that the bench needs to examine whether the high court could have quashed the entire statutory law on
the issue.
Senior advocate Maninder Singh, representing some of the petitioners before the high court, opposed Sibal’s arguments. He questioned how those persons who had converted to Islam could claim the benefits of reservation. Another senior advocate, P.S. Patwalia, also representing some of the petitioners who had challenged the quota benefits for Muslims, said that between 1994 and 2009 there were 66 OBCs. But the state brought in the law extending the benefits to 44 new communities, of which 41 are Muslims. As a result over 108 communities are listed as OBCs in the state “without any quantifiable data,” he argued.
Justice Gavai remarked that since the 1992 constitution bench ruling in the Indra Sawhney case, popularly known as the anti-Mandal committee case, the apex court had consistently held that the executive had the power to identify and classify various communities. The bench posted the matter for further hearing to January 7.
On August 5, the top court had directed the Mamata Banerjee government to file an affidavit explaining the consultation process adopted to justify the classification.
It had asked the state to explain the nature of the survey conducted by the government in determining the beneficiaries, whether there was a lack of consultation with the West Bengal Backward Classes Commission, and the specific nature of the survey conducted by the state with regard to the inadequacy of representation and social backwardness of the communities.
The bench was dealing with the Bengal government’s appeal assailing the high court judgment to quash the classification of 77 communities by the state under the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012, as being illegal and unconstitutional.