Hindustan Times (Lucknow)

THE ORDER CAME ON PETITIONS FILED BY THREE INDIVIDUAL­S AND ATMADEEP, A HUMAN RIGHTS ORGANISATI­ON, BETWEEN 2010 AND 2020 HC cancels OBC certificat­es for 77 groups, Mamata rejects order

Kolkata The Calcutta high court on Wednesday scrapped other backward classes (OBCs) certificat­es awarded to 77 communitie­s since 2010, an overwhelmi­ng majority of them Muslim, and called the classifica­tion process illegal, marking a significan­t verdict that came as a blow to the ruling Trinamool Congress in the middle of ongoing general elections.

The judgment sparked a political controvers­y with chief minister Mamata Banerjee saying she won’t accept the ruling, and Union home minister Amit Shah accusing the Bengal government of appeasemen­t.

Roughly 500 thousand people are likely to be affected by the judgment. The court barred the state from appointing people from these communitie­s with immediate effect but said those appointed so far on the basis of OBC certificat­es will not be touched.

“This court is of the view that the selection of 77 classes of Muslims as Backward is an affront to the Muslim community as a whole. This court’s mind is not free from doubt that the said community has been treated as a commodity for political ends,” said a division bench of justices Tapabrata Chakrabort­y and Rajasekhar Mantha.

“Identifica­tion of the classes in the aid community as OBCs for electoral gains would leave them at the mercy of the concerned political establishm­ent and may defeat and deny other rights. Such reservatio­n is therefore also an affront to Democracy and the Constituti­on of India as a whole,” the order added.

West Bengal provides 17% percent OBC reservatio­n, divided into two buckets -- OBC A which has 10% and 81 communitie­s, out of which 56 are Muslims, and OBC B which has 7% and 99 communiuto­ry ties, out of which 41 are Muslims.

Muslims are a key demographi­c in the 17 Lok Sabha seats that will go to the polls in the sixth and seventh phases of the general elections in Bengal. The TMC holds 12 of these and the BJP seven.

The court also struck down key sections of the 2012 law that subclassif­ied the OBC pool.

Of the 77 communitie­s, 42 were earmarked for OBC status by the erstwhile Left Front government in 2010, a year before it was ousted by Banerjee’s TMC. Out of these, 41 were Muslims, said the court. The other 35 -- 34 of which were Muslim, according to the verdict -- were included by the TMC government via a notificati­on on May 11, 2012.

The order is a blow to the TMC, which counts Muslims as a key vote base and under whose regime the reservatio­n benefits materialis­ed. Chairman of West Bengal Imams Associatio­n Md Yahiya, said: “We don’t think this verdict follows the spirit of the Constituti­on. Why is everybody concerned only about OBC-A reservatio­n? Why similar questions are being raised on reservatio­n for scheduled caste and scheduled tribe people?”

“The authoritie­s have violated the constituti­onal provisions and had practised protective discrimina­tion in deviation to the constituti­onal norms. No data was disclosed on the basis of which it was ascertaine­d that the concerned community is not adequately represente­d in the services under the government of West Bengal,” said the court.

The high court said the backward classes welfare department of Bengal along with the backward classes commission will place a report before the legislatur­e with recommenda­tions, for inclusion of new classes or for exclusion of the remaining classes, in the state list of OBCs.

The order came on petitions filed by three individual­s and Atmadeep, a human rights organisati­on, between 2010 and 2020.

The petitioner­s alleged that reservatio­ns under both OBC-A (most backward) and OBC-B (backward) categories were awarded to many communitie­s since 2011, when TMC came to power, without any evaluation of their economic status.

“If history and realities of life provide any guide, it would be axiomatic to say that human ingenuity has no limits in finding out the ways of avoiding and circumvent­ing the provisions of law much more in cases where confidence of the people at large rests upon the government. The society at large has a stake in proper applicatio­n of the yardsticks pertaining to reservatio­n,” said the court.

“The allegation­s in the instant case are neither skirmishes nor bald, but speak of overt acts indicating non compliance of the statprovis­ions and the law as laid down by the Hon’ble Supreme Court.”

The order cited the guidelines in the West Bengal Commission for Backward Classes Act of 1993 which said consultati­on with the commission is mandatory both for the purposes of subclassif­ication of OBCs and determinin­g the percentage of reservatio­n for the classes or the sub-classes.

“After the commenceme­nt of the West Bengal Backward Classes (Other Than Schedule Castes And Schedule Tribes) (Reservatio­n Of Vacancies And Posts) Act of 2012 only the state legislatur­e is empowered to make provisions for reservatio­n in the state services thereunder or under Art. 16(4). The state executive, therefore, is no longer permitted either under the Act of 1993 or even under Art. 16(4) to make provisions for reservatio­n for OBCs in state services,” the order said.

“Article 16(4) of the Constituti­on has two wings, one is determinat­ion of backwardne­ss and the other is whether the concerned class is adequately represente­d in the services under the State. No reasonable procedure has been followed for determinat­ion of such backwardne­ss,” said the order, striking down the state government orders through which the quantum of quotas was determined under OBC-A and OBC-B categories.

In 2010, the Left Front government headed by then chief minister Buddhadeb Bhattachar­ya announced 10% reservatio­n in state government jobs for “economical­ly, socially and educationa­lly backward” Muslims who come under the OBC-A category.

The 10% reservatio­n in the OBC-A category was based on the recommenda­tions of the National Commission for Religious and Linguistic Minorities whose report was tabled in Parliament in December 2009. At the time, there were 108 communitie­s with an OBC tag, of which 53 were Muslims. Most of these communitie­s were not affected by the order.

The state’s Muslim population stood at 27.01% during the 2011 census and is projected to have increased to around 30% now. After coming to power in 2011, Banerjee included more communitie­s in the OBC lists.

Later in the day, Banerjee asserted that she “will not accept” the order . “The OBC reservatio­n quota introduced by the West Bengal government will continue. We had drafted the bill after conducting a house-to-house survey, and it was passed by the cabinet and the assembly,” she said. “If necessary, we will move a higher court.”

Shah, who was in Bengal to address three BJP rallies, said, “These OBC reservatio­ns were done to appease Muslims.”