West Bengal's OBC classification case: 'Reservation can't be on basis of religion,' says Supreme Court

During the hearing on Monday, the top court asked the lawyers appearing in the case to give an overview of the matter.

New Delhi: The Supreme Court on Monday said that reservation cannot be given on the basis of religion.

A bench of Justices B R Gavai and K V Vishwanathan made the oral observation while hearing a petition filed by West Bengal challenging the decision of the Calcutta High Court to quash the Other Backward Class (OBC) classification of 77 communities, mostly belonging to Muslim religion.

During the hearing, senior advocate Kapil Sibal, for the West Bengal government, contended that this year onwards the state could not do anything as there is no reservation in admissions, no reservation in employment, and no reservation in promotion and scholarship.

Assailing the High Court’s decision, he said that the reservation was granted not based on religion but based on the backwardness of the communities.

He asked the bench to pass an interim order in the matter.

On this, the bench observed that reservation cannot be based on religion.

Sibal, on his part, clarified that this reservation is not based on religion but backwardness which has been upheld by the court, and even amongst the Hindus it is on backwardness.

The counsel claimed that backwardness is common to all sections of the society. “The ground of religion is not an issue here. It happens that they belong to a religious community but they are backward,” he said.

The apex court was informed that Ranganath Commission has recommended such reservation and that many of those communities are included on the central OBC list.

Sibal contended the High Court relied upon the judgment of the Andhra Pradesh High Court quashing the reservation for Muslim OBC communities, which was stayed by the Supreme Court and the matter was pending.

Senior advocate P S Patwalia, representing the respondents, opposed the arguments.

He said that the reservation was given without any data or survey and bypassing the backward classes commission.

Sibal said there was quantifiable data, and the commission recommended for it, which was notified by the state government notified.

"But the Act was struck down. This is completely wrong,” he contended.

On this, the bench asked how the High Court could strike down the provision (Section 12) of West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012 when it was a provision, which enables the state government to identify classes.

"Right from Indira Sawhney (Mandal Commission judgment), it has been held that it is the power of the executive to identify and classify,” the bench said, further asking how a provision in the statute be struck down which grants the state the power, whether it is possible misuse of a provision, a ground enough to strike it down.

The court fixed the matter for further hearing on January 7, 2025.

On August 5, a bench led by then CJI D Y Chandrachud directed the West Bengal government to explain the basis of its decision to designate 77 communities, most of which were Muslims, as the other backward classes (OBC).

The court had then asked the state government to bring on record the nature of the survey which was carried out on the aspects of social and educational backwardness, and inadequacy of representation in the services of the state.