Muslims used for political ends; inclusion in OBCs was for electoral gain: Calcutta High Court

The Calcutta High Court on Wednesday said the Muslim community was treated as a "commodity for political ends" when the West Bengal government classified 77 classes of Muslims as backward between 2010 and 2012 [Amal Chandra Das vs State of West Bengal]..The division bench of Justice Tapabrata Chakraborty and Justice Rajasekhar Mantha remarked that the decision of the State was an affront to the Muslim community as a whole as they were treated merely as a vote bank. While describing the decision as an affront to the democracy and Constitution of India, the Court said,"This Court’s mind is not free from doubt that the said community has been treated as a commodity for political ends. This is clear from the chain of events that led to the classification of the 77 Classes as OBCs and their inclusion to be treated as a vote bank. 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"..The Court made the comments in its judgment quashing the decision to identify various classes as Other Backward Class (OBC) under the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012.The Court also found the recommendation made by the West Bengal State Backward Class Commission in this regard to be not in accordance with the Constitutional value of impartial and secular reservation."Although the reports of the Commission are prepared to show that it has not made a religion-specific reservation, it appears otherwise to this Court," it said.The bench opined that the Commission should have taken appropriate precautions while dealing with the applications, "filed by the classes from a particular community, regardless of the nomenclature of the community".It cannot be expected that the Commission was totally unaware of the public announcement made by the then Chief Minister to grant 10 percent reservation to Muslims, the Court added. The bench further noted that the State government, after receiving the recommendation from the Commission, within four months procured and relied upon an executive Summary of a study done by the Anthropology Department of the University of Calcutta, to sub-classify the classes. The State must have known much earlier about the said study which was aimed at determining the reasons for the backwardness of the Muslim Community, the order stated."This would justify the joining of dots and notice the curious timeline. The announcement by the Chief Minister, the recommendation of the 77 classes in lightening speed by the Commission the immediate declaration by the State of such Religious Classes as OBCs, and the Executive Summary of the Anthropology Department of Calcutta University and the sub-classifications based on the same," the Court saidThus, it concluded that religion had been the sole criterion for declaring these communities as OBCs..Reliance on Sachar Committee report rejected.On State's reliance on the Sachar Committee report to justify its argument that the Muslim community was in fact backward in the State, the Court said, "This court notes that the Sachar Committee was constituted by the PMO under the Cabinet Secretariat .... It was not constituted under Art. 340 of the Constitution which empowers only the President to constitute a Commission for backward classes. Hence, the report of the Committee does not have Constitutional sanction or support."The Court also said the data collected by the Sachar Committee was already "outdated" in 2010. "The committee was constituted on March 9, 2005, and submitted its report around October 2006. The State included the classes in 2010 i.e. 4 years after the Sachar Committee report," it said.It also rejected the argument that since Muslim community has been identified as backward in certain reports of other committees set up by the Centre, they are undisputedly backward and thus there was no need to conduct any detailed survey or inquiry about their backwardness."The learned AAG has placed reliance on the report of the Mandal Commission, which was prepared and tabled in the Parliament in the 1990s. It was argued that the said report has already identified certain classes of the Muslim community as backward. The argument cannot be sustained as the State would then have included such classes from the Muslim Community under the State OBC list in 1992 itself.".The West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act to the extent that it excludes the application of the West Bengal Commission for Backward Classes Act and the role of the State Commission in the process of identification and declaration of classes as OBC, is in direct conflict with with Supreme Court's decision in Indra Sawhney, the Court further said."The State has reserved to itself, an uncanalised power of picking and choosing at its convenience as to when it would or would not consult the Commission for the purpose of identification of the backward classes for the purpose of reservation," the judgment ruled. The Court opined that such exclusion of the role of the Commission and arrogation to itself the power to ignore the Commission "at its own sweet will whim and fancy" tantamounts to an exercise of "fraudulent legislative power and consequently a fraud on Constitutional power under Article 16 (4) of the Constitution."The process of identification involves not only the ascertainment of backwardness but also an assessment of whether a backward class is inadequately represented in the services under the State by comparing the same with the entire populace including the unreserved classes. The role of the Commission, is therefore, indispensable since any process of classification and sub-classification is required to be preceded by, the identification of the classes." .Senior Advocates LK Gupta and Guru Krishna Kumar along with advocates Subir Sanyal, Samir Pal, Debjani Ray, Bikram Banerjee, Sudipta Dasgupta, Dipa Acharyya, Sinjini Chakraborti, Baibhav Ray, Arkadeb Biswas, Arka Nandi, Sagarika Goswami, Saikat Sutradhar, Suryatapa Das, Sohini Dey, Sondwip Sutradhar, Sagar Dey, Sutirtha Nayek, Shalini Ghosh and Shaptarni Raha appeared for the petitioners. Advocate General Kishore Datta, Senior Standing Counsel A Banerjee and Senior Advocate Tapan Kumar Mukherjee, along with advocates A Mondal, I Banerjee and S Naskar represented the State. Deputy Solicitor Generals Dhiraj Kr Trivedi and Billwadal Bhattacharya and advocates Kumar Jyoti Tewari and Amrita Pandey represented the National Commission for Backward Classes. Senior Advocate S Sen and advocates A Mondal and A Ghatak represented the Backward Class Commission..[Read Judgment]