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‘A fraud on Constitutional power’: Read how the Calcutta HC exposed Left and Mamata govt’s appeasement scheme of including Muslims in OBC category

The Left and TMC regimes in West Bengal included 77 new classes (75 belonging to the Muslim community) in the OBC category between 2010 and 2012.

In a landmark judgment on Wednesday (22nd May), the Calcutta High Court cancelled Other Backward Class (OBC) certificates issued to 77 groups by the Left and Trinamool Congress governments between 5th March 2010 and 11th May 2012.

The development came as a shocker for the incumbent government ahead of the upcoming 6th phase of Lok Sabha elections in the State.

While the West Bengal Chief Minister Mamata Banerjee has openly announced to flout the verdict of the Calcutta High Court, let us take a deep dive into the raging controversy that began 13 years ago.

The Background of the Controversy

The Communist Party of India (Marxist) government, which preceded the TMC era, had declared 66 classes as OBCs between 1994 and 2009. About 12 of the classes belonged to the Muslim community

With the 2011 elections in mind, the CPIM government issued 7 executive orders between 5th March and 10th September 2010 to declare 42 new classes as OBCs. 41 of them belonged to the Muslim community.

These new groups thus became eligible for reservation and representation in jobs provided by the West Bengal government. To further appease their Muslim vote bank, the CPIM additionally announced a 10% reservation for Muslims in government jobs in February 2010.

After Mamata Banerjee became Chief Minister of West Bengal in May 2011, she continued with the appeasement politics of the Left Regime.

In an executive order issued on 11th May 2012, the TMC government declared another set of 35 new classes as OBCs. As expected, 34 of those classes belonged to the Muslim community.

Thus the Left and TMC regimes included 77 new classes (75 belonging to the Muslim community) in the OBC category within just 2 years.

The Mamata government enacted the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012 and further categorised the 77 classes as OBC A (More Backward) and OBC B (Backward).

The first petition, challenging the decision of the Left government, was filed by a man named Amal Chandra Das on 18th January 2011. He questioned the declaration of 42 classes as OBCs on the sole basis of religion.

Das pointed out that the categorisation was not done based on any acceptable data and that the survey conducted by the Commission, constituted by the West Bengal government to aid and assist in the identification of OBCs, was pre-fabricated

Three other petitions were filed by Amal Chandra Das, Purabi Das and Atmadeep between 2012 and 2020 challenging the constitutional validity and various provisions of the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012.

In the verdict announced by the Calcutta High Court on Wednesday (22nd May), all four petitions were tagged and heard together.

Primary arguments of the petitioners

The West Bengal government, run by the Left and TMC, came under scanner for its “unconstitutional” categorisation of classes solely based on religion, as laid down by the Supreme Court in the landmark Indra Sawhney case of 1992 (wherein the Judiciary upheld the validity of 27% OBC reservation).

The recommendation for the classification of the 77 classes is made in undue haste. The classification is unscientific,” the petitioners had argued, adding that the Commission has failed to provide scientifically acceptable and identifiable data.

They emphasised, “The data of the Commission and its methodology are unscientific. Yet recommendations have been made based on such inadequate data. The Commission appears to have been required to meet a political deadline set by the government. The classification therefore appears to have been done for political reasons.”

The petitioners pointed out that the Commission constituted by the West Bengal government for the identification of OBCs have “illegally” focused only on the Muslim community and did not bother to compare the 77 classes with the unreserved categories to determine whether the newly incorporated classes within the OBC fold were “inadequately represented.”

They also highlighted how the Commission only surveyed 5% of the population belonging to the 77 classes and not the entire popular as mandated by the Indra Sawhney case.

The inquiry by the Commission should have been conducted through public hearings. The documents disclosed by the Commission do not
indicate any such public notice or public hearings. Therefore, the documents of the Commission referred to in the affidavit and available on its website cannot be relied upon as bonafide
,” the petitioners in the case argued.

They also pointed out that the sub-classification of the new 77 classes in the OBC-A and OBC-B categories was done without consulting the Commission, which is in direct violation of the West Bengal Commission for Backward Classes Act of 1993 [pdf].

It is interesting to note that once the West Bengal government made up its mind to notify several classes within the Muslim community as ‘backward’, the Department of Anthropology of the University of Calcutta conducted a study on its own and provided an executive summary to lend credence to the categorisation of the newly inducted ‘Muslim’ OBCs.

Reliance on the executive summary report of the Department of Anthropology of the University of Calcutta, by the State for this sub-classification is illegal because the said department is not statutorily authorized to conduct such studies,” the petitioners stated

They further added, “Collusion and illegal and unholy nexus between the Commission and State is writ large even before this court. The Commission has therefore clearly admitted to having acted and made recommendations of classes as OBCs at the dictates of the State.”

Observations made by the Calcutta High Court

The matter came up for hearing before a 2-judge Bench of Justices Tapabrata Chakraborty and Rajasekhar Mantha of the Calcutta High Court.

In its 211-page judgment [pdf], the court took into account the arguments made by the West Bengal government and the petitioners and struck down 5 lakh OBC certificates issued by the government since 5th March 2010.

The Judges noted that the West Bengal government had placed “extensive reliance” on the Sachar Committee Report of 2006 [pdf], which had infamously concluded that the condition of Muslims in India was worse than those belonging to the Scheduled Castes (SCs) and Scheduled Tribes (STs).

The Calcutta High Court ruled that the Sachar Committee Report, relied upon by the State to justify the backwardness of Muslims and include them in the OBC category, has no constitutional sanction.

This was done to support the argument that the Muslim community is in fact backward in the State. The report was placed to justify the inclusion of 99% classes of Muslims as OBC under the subject memoranda, and to bypass the Commission in the process of sub-classification. This court notes that the Sachar Committee was constituted by the PMO under the Cabinet Secretariat O.M. No. 105/1/1/75-CF dated 20.11.1975. 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 objected to the laxity on the part of the Commission, constituted by the West Bengal government for not conducting a detailed survey to determine the backwardness of the classes inducted into the OBC category. It pointed out that the reliance on the obsolete Mandal Commission report to notify OBC categories between 2011 and 2022 is not tenable.

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 Calcutta High Court also noted that the West Bengal government committed “fraud on the Constitutional power of the State” by enacting the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012 and excluding the role of Commission in the identification of new OBCs.

Such exclusion of the role of the Commission, and arrogating to itself the power to ignore the Commission at its own sweet will whim and fancy therefore tantamounts to an exercise of fraudulent legislative power and consequently a fraud on Constitutional power under Art 16(4). It appears that the Act of 2012 has been enacted for the oblique purpose of bypassing the Commission or at the least to render the mandatory requirement of consulting the Commission optional.

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.

Such identification involves the analysis of the degree of harm, faced by the Other Backward Classes, which warrants an appreciation of a complex web of factors, for which a permanent Commission has been constituted by and under the Act of 1993.

The learned Judges also highlighted that the Commission flouted constitutional principles to include Muslims in the OBC category.

The Commission’s reports are not in accordance with the Constitutional value of the 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.

The Commission should have taken appropriate precautions and have been vigilant while dealing with the applications, filed by the classes from a particular community, regardless of the nomenclature of the community, since it cannot be expected that the Commission was totally unaware of the public announcement, made by the then Chief Minister of West Bengal.

The court also noted how the Anthropology Department of the University of Calcutta worked in cahoots with the Left government to rationalise the decision to notify the first set of new OBCs on the sole criterion of religion.

Admittedly within four months of the recommendation and declaration of the first set of these classes as OBCs the State procured and elied on an executive Summary of the Anthropology department of the University of Calcutta, to sub-classify the classes. The State must have known of the said study months earlier as a study of this nature takes many months to prepare. Such study itself was aimed at determining the reasons for the backwardness of the Muslim Community in the State.

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 subclarification based on the same.

All this in a span of 5 months could raise doubts in the mind of any reasonable man that the events are closely interlinked and were part of a common intention. Religion indeed appears to have been the sole criterion for declaring these communities as OBCs.

The learned Judges came down heavily on the West Bengal government for treatment of Muslims as a ‘political commodity’ and exploiting them for electoral gains. They stated –

“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. 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. Such reservation is therefore also an affront to Democracy and the Constitution of India as a whole.”

Conclusion

It is interesting to note that while most classes belonging to the Muslim community were included in the OBC category under the Left regime, it was the Mamata Banerjee-led-TMC government that issued the most number of OBC certificates to Mulims after coming to power in 2011.

Ayodhra Ram Mandir special coverage by OpIndia

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Dibakar Dutta
Dibakar Duttahttps://dibakardutta.in/
Centre-Right. Political analyst. Assistant Editor @Opindia. Reach me at [email protected]

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