Calcutta High Court. (Express Photo by Partha Paul)
The Indian Constitution promises social justice and permits the state to make special provisions in favour of the underprivileged to achieve substantive equality. Largely due to electoral compulsions rather than constitutional promises, successive governments led by various political parties have been coming up with reservation policies. The “appeasement” tag, however, has been deployed only in cases of reservation even for Muslim backward castes or pasmanda Muslims and not when Patidar, Gujjar, Jat, Marathas, EWS reservations were announced. The story of the inclusion of various castes in the Backward list or their transfer to the Scheduled Caste (SC) list tells a similar tale. Both Akhilesh Yadav and Yogi Adityanath, as chief ministers of Uttar Pradesh, announced the inclusion of 17 OBC castes in the SC list.
A closer look at the judicial response to reservation policies demonstrates two trends. First, our judiciary has not quite been quite supportive of such policies. It opposed reservation in promotions and introduced exclusion of the “creamy layer” (Indira Sawhney, 1992) brought in the 50 per cent upper limit (M R Balaji, 1963) and stuck down the “carry forward” rule (B N Tiwari, 1964). In fact, it has generally been more sympathetic to the cause of general candidates and emphasised “efficiency”. In several cases dealing with reservation for Muslim Backward Classes (BCs), the Court appears to lean towards the strict scrutiny test and undertook a microscopic evaluation of such “policies”. This even though the apex court had rejected similar procedures in other cases of affirmative action in Ashok Thakur (2008). The 211-page judgment of Justices Tapabrata Chakraborty and Rajasekhar Mantha of the Calcutta High Court has once again not only stuck down the inclusion of some Muslim BCs but it also tore apart the recommendations of the West Bengal State Backward Class Commission(BCC).
Interestingly, the initial decision in this case was made not by Mamata Banerjee but by her predecessor, Buddhadeb Bhattacharya when 41 out of 42 Muslim castes were included within the Backward Class category between March 5, 2010, and September 24, 2010. On September 24, 2010, 56 castes were included within OBC (More Backward) and 52 under OBC (Backward). Banerjee took oath as Chief Minister on May 20, 2011. On May 11, 2012, 35 castes were included in the BC list of which 34 were Muslim castes. An Act was passed in 2012 which sub-categorised 77 OBC Castes into backward and more backward. The bench struck down the above decisions primarily on four grounds: First, the inclusion of these castes was made by executive orders; second, the West Bengal Backward Class Commission was not consulted on sub-categorisation; third, the recommendations of the BC Commission were not based on the in-depth empirical survey of the entire population; Fourth, the “inadequacy of representation” in state services of these castes was not fully examined.
The High Court rightly noted that the West Bengal Commission for the Backward Classes Act, 1993 had made the recommendations of the BC Commission mandatory but the 2012 Act had diluted this requirement to “where the government reached it”. The court made it mandatory in all cases.
But the scrutiny Justice Chakraborty has done of BC Commission reports’ minutes, time taken by them in disposal of applications, etc. go beyond the usual judicial review of the expert bodies’ recommendations.
Interestingly, the court overlooked the fact that the Supreme Court in Indira Sawhney said that reservation can be provided by the executive’s order and, therefore, their finding of state government to mean “state government in the discharge of legislative functions and in consultation with the BC commission” is a bit controversial. The President of India has been given power to include any caste or tribe within the SC or ST under Articles 341 and 342 in consultation with the governor.
The High Court’s rejection of the Sachar Committee’s findings on the ground that its 2006 data cannot be relied on in 2010 is strange as in such matters, we do not get data on an annual basis. Even the census is done every 10 years. In 1991, the Mandal Commission’s Report 1980 was relied on to give 27 per cent reservation to OBCs using 1931 Census data. How can the High Court ignore the less than four-year-old Sachar Committee report?
The High Court’s criticism of just 5 per cent of the population being surveyed by the BC Commission is equally surprising as the Mandal Commission had surveyed just two villages and one block in 405 of 406 districts. The High Court errs in its interpretation that the Sachar Committee had recommended an Equal Opportunity Commission just “for the Muslims” (Para 106).
Since the High Court went into the details of the functioning of the BC Commission, it should have done a similar dissection of its recommendations in respect of non-Muslim castes and examined whether public hearings were held, the inadequacy of representation examined or survey of entire castes was done on the 11 parameters laid down by the Mandal Commission.
Similarly, overlooking the fact that many of these Muslim BC castes had already been included in the BC category not only by the Mandal Commission, but also by the central government on the recommendation of the National Backward Class Commission has made this judgment controversial.
Also, the fact that some of these occupational Hindu Castes are SCs was an important fact that the judgment acknowledged but refused to appreciate on the ground that that SC and BC reservations are different. Moreover, the court refused to accept the argument that many of these Muslim castes are converts from the Scheduled Castes. The inclusion of such occupational castes within the SCs is proof of their backwardness, which was accepted even by the Supreme Court in Jarnail Singh(2018).
The judgment raises an irrelevant question on the timing and motive of their conversion. These conversions date back to nine centuries or so. The BC Commission was right in not probing the motive of conversion as changing religion is a purely private choice.
The judgment overlooked the fact that the “Christian converts from SCs and their progeny” have been recognised in West Bengal by the Central government in 2000 as Backward. Several upper-caste Hindus, including Brahmins, too have been recognised as BCs in central and state lists without the kind of scrutiny that the court did in this case.
Reservation for the entire Muslim community for no reason other than religion would certainly be unconstitutional. However, Muslim BCs are given this reservation not due to their religion but their backwardness. Let “backaward” Muslims get the same privileges as their non-Muslim counterparts.
The writer is vice-chancellor of Chanakya National Law University, Patna. Views are personal
