No Contemporaneous Material Placed Before Court: National Backward Classes Commission Opposes Before SC Inclusion Of 83 Muslim Communities In OBC List By West Bengal
The National Commission for Backward Classes (NCBC) has filed a counter affidavit in the Supreme Court in the ongoing petition challenging the judgment passed by the Calcutta High Court striking down the OBC reservations granted by the State of West Bengal between 2010 and 2012.
The NCBC has contended, "There is no relevant and contemporaneous material which was examined by the Commission had been placed before this Court for including 83 communities from Muslim religion in the OBC list. There is no justification on behalf of the petitioner state has been made to demonstrate that there was inadequate representation or rather disproportionate to the population of the Muslim community in the service sector in the State of West Bengal to include 83 communities from the Muslim faith in the State List of OBC and give them reservation in public service, illegitimately depriving other similarly placed persons from other communities."
In the response, filed through AoR Dr. N. Visakamurthy, the NCBC stated that so far as the State of West Bengal is concerned, the reservation percentage for OBCs in civil services and posts, as well as admission in educational institutions via Notification No. 347-TW/EC dated 13.7.1994, was initially fixed at 5 percent, and 14 (fourteen) castes/communities were included in the State List of OBCs at that time. "..such reservation percentage was enhanced to 7 percent vide OrderNo.1056-BCW/EC/MR- 302/97dated 06.11.1997, and the number of castes/communities included in the State List of OBCs at that time was 52," it added.
The NCBC stated that from the year 1994 till the year 2009, a total of 12 (twelve) communities from the Muslim faith were identified and recommended by the West Bengal Commission for Backward Class (hereinafter referred to as the 'Commission') and included by the State of West Bengal in the OBC List. Subsequently, 41 communities out of 42 communities of Muslim faith were included in the State List of OBCs.
"On one side the Government of West Bengal is requesting for inclusion of 87 castes / communities (83 castes / communities for fresh inclusion and 4 castes / communities for amendment of nomenclature / incorporation of similar castes / communities) as backward class in the Central List of OBCs for the purposes of Article 15(4) and Article 16(4) of the Constitution of India for admission in seat in educational institutions and for appointments or posts in the public services under the control of Union Government excluding creamy layer amongst them, but on the other side the State Government has failed to provide the latest statistics for mapping / measuring of social and educational backwardness," the counter affidavit stated.
On the views of the State Commission for Backward Classes, the NCBC said, "The report of the State Commission does not disclose any evidence at all except stating what was contained in the answers furnished to the relevant columns ni the questionnaire submitted by the community to the State Commission. The contents of the proforma and what is stated by the representatives of the community in the absence of other relevant information cannot be accepted as decisive of the social and educational backwardness of the community. When the State Commission has appointed a study team, the findings of such a study team would naturally be entitled to great weight. Unfortunately, the study team has not submitted any report. The State Commission says that the members of the study team have held discussion with the Commission members."
Furthermore, the NCBC submitted, "While exercising the power under Article 338-B(8) of the Constitution of India, the NCBC has held the hearings on 03.11.2023, 22.12.2023, 16.01.2024, 08.02.2024, and 21.02.2024, respectively. On five occasions, the Chief Secretary, Government of West Bengal, did not appear before the National Commission for Backward Classes and failed to provide contemporaneous material which was to be examined by the Commission. In furtherance, both the West Bengal Commission for Backward Classes and the State of West Bengal filed one joint affidavit in the present case."
Today, when the matter was taken up, the Bench of Justice BR Gavai and Justice Augustine George Masih deferred the matter after noting that the issue required a detailed hearing.
During the hearing, Solictor General (SG) Tushar Mehta, appearing for the NCBC, informed the Court that they have filed the counter affidavit. Senior Advocate Kapil Sibal appeared for the State of West Bengal.
Accordingly, the Court scheduled the matter for hearing on January 28 and 29.
Pertinently, on August 5, 2024, the Apex Court had issued notice in a stay application filed in a petition challenging the judgment passed by the Calcutta High Court striking down the OBC reservations granted by the State of West Bengal between 2010 and 2012.
A Division Bench of the High Court had also struck down two orders issued in 2010 and 2012 by the Government Of West Bengal Backward Classes Welfare Department sub-classifying 143 classes and some provisions of the West Bengal Backward Classes (Other than SC and ST) (Reservation in Posts) Act of 2012.
In the judgment, which expressly stated that it is prospective, the High Court held that from the date of the pronouncement of the Judgement, the citizens from 114 (77+37) OBC classes cannot be appointed under the state services or derive any other benefit of any reservation for the purposes of Article 16(4) of the Constitution until the Backward Classes Commission and the State conduct fresh exercise for the purposes of Article 16(4), in accordance with law.
"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," the High Court had held on the issue of reservation to Muslims based on religion.
Cause Title: The State Of West Bengal v. Amal Chandra Das [Diary No. 27287/2024]
