Explained: Which 77 Classes in West Bengal Lost OBC Status; What Led Calcutta HC to Scrap Their Backward Class Certificates

New Delhi: The Calcutta High Court on May 22 scrapped all Other Backward Castes (OBC) certificates issued by the state government since 2010, declaring them “illegal”. Some petitioners had contested the process followed to grant the certificates.

The court declared unconstitutional Section 5(a), Section 16 and the second part of the Section 2(h) of the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012.

A division bench of justices Rajasekhar Mantha and Tapabrata Chakraborty, however, clarified that the beneficiaries would not be affected by the order.

“Citizens from the 77 classes and 37 classes (added in the exercise of Section 16) struck down above, who are already in the service of the State, or have already availed the benefit of reservation or have succeeded in any selection process in the State, shall not be affected by the reason of this judgement,” the court said.

The Trinamool Congress (TMC) government in the state led by Chief Minister Mamata Banerjee, seven and ten percent reservations were given to the sub-classified categories. As a result, according to the court, the sub-classified categories (OBC-A and OBC-B) were removed from Schedule I of the Act.

The bench also quashed an executive order dated May 11, 2012, creating several sub-sections. In the 211-page judgment, the court made it clear that the state government’s executive orders, classifying 66 categories of OBCs before 2010, were not interfered with as these were not challenged in the petitions.

The court also struck down an executive order of September 2010, which increased the percentage of reservation for OBCs from 7% to 17%, on the grounds that the Backward Classes Welfare Commission was not consulted before making a provision of 10% reservation for Category A and 7% for Category B.

The bench said that the 10 percent hike in percentage of reservation was due to subsequent inclusion of categories created since 2010.

Fallout of the Decision

Due to this decision, over 5 lakh OBC certificates, mostly held by Muslims, have been revoked. These certificates are no longer valid for government employment or other privileges.

The court found the state government did not issue OBC certificates after 2010 in accordance with the law. A number of alleged legal and procedural flaws led the High Court to revoke all OBC certificates issued since 2010.

The court determined that it was unlawful to classify and subclassify OBCs using multiple executive orders and memos. In particular, the inclusion of 77 classes between 2010 and 2012 and the subcategorization under the West Bengal Backward Classes (Other than SC and ST) (Reservation in Posts) Act, 2012, violated the legislation.

Procedural Flaws 

According to Article 16(4) of the Indian Constitution, the state may designate appointments or positions for an individual from disadvantaged backgrounds who, in the state's view, are underrepresented in the state government services.

However, the state government’s actions, according to the High Court, were in violation of this fundamental clause. It said since the reservations were not founded on a legitimate and legally sound assessment of social and educational backwardness, it was improperly classified and subclassified.

The court also pointed out that the Backward Class Commission’s reports and recommendations lacked “procedural integrity” and were “blatantly arbitrary”. A transparent and equitable approach “was not followed” in the identification and inclusion of particular classes, which is a necessary prerequisite for such an important decision.

The state government’s executive orders were deemed by the High Court to be a “corrupt” use of authority. This indicates that the government’s powers were not employed for their intended purpose, resulting in classifications that did not accurately represent the legal requirements for backwardness.

Who Had Got the Certificates?

Majority of the 77 classes whose OBC status has been revoked belong to the Muslim community.

The bench said, “This Court is of the view that singling out 77 sections of Muslims as backward classes is an insult to the entire community. This Court has no doubt that the said community will be considered as an object for political purposes. Identification of these sections of people as OBCs for electoral gains will leave them at the mercy of the respective political establishment and may defeat and negate others’ rights. Therefore, such reservation is an insult to democracy and the Constitution.”

The court pointed out that the recommendations for sub-categorization of OBCs by the State were made bypassing the state commission, and out of the 42 categories recommended for reservation, 41 belonged to the Muslim community.

The court held that the primary and sole consideration for the commission was to make religion-specific recommendations. It said its objective was to provide religion-specific reservations.