Calcutta HC Verdict: Are OBC Reservations for Muslims Constitutional?

In a recent ruling, the Calcutta High Court has invalidated Other Backward Class (OBC) certificates for 77 Muslim classes in West Bengal, casting doubt on the West Bengal Backward Classes Act of 2012 and striking down several of its provisions for contravening the landmark Indra Sawhney judgment, which was the basis for introducing OBC reservations in India.

This decision came amid India’s election season and has intensified debates over the legitimacy of granting OBC reservations to Muslims. The ruling Bharatiya Janata Party (BJP), which has long opposed such reservations for Muslims, welcomed the decision, calling it a setback for the opposition.

Conversely, the All India Trinamool Congress (TMC)-led West Bengal government expressed dissatisfaction and plans to challenge the ruling in the Supreme Court. The opposition INDIA-bloc alliance has criticised the BJP for allegedly attempting to dismantle the reservation system, while the BJP maintains that providing reservations to Muslims contradicts the constitutional intent of reservations.

The ruling BJP, which has long opposed OBC reservations for Muslims, welcomed the Calcutta High Court decision, calling it a setback for the opposition.

The BJP’s electoral promises have consistently included the abolition of reservation quotas for Muslims, particularly in states such as Karnataka, Telangana and West Bengal, which are governed by opposition parties.

Beyond the political rhetoric, it is essential to examine the legal and constitutional basis of the OBC reservation for Muslims in India, as interpreted by the Calcutta High Court.

Reservations to religious minorities in India

OBC reservations are distinct from the constitutionally envisioned Scheduled Caste (SC) and Scheduled Tribe (ST) reservations. While SC and ST reservations are premised on intergenerational caste-based prejudices, OBC reservations were added only in 1992 after the Mandal Commission’s recommendations, which were judicially upheld in the landmark Indra Sawhney versus Union of India case, which are, as the name itself suggests based on ‘backwardness’ of a community, not just caste-based.

By way of the 93rd amendment to the Constitution, 27 percent of OBC reservations were constitutionally stipulated, but leaving the phrase ‘backward classes’ under Articles 15(4) and 16(4) ensured that such reservations could be provided to even religious minorities who are socially and educationally backward.

This paved the way for states to confer sub-quotas for Muslims within OBCs, starting with Kerala, dating back to 1956, which provided 10 percent sub-quota (now 12 percent in employment and 8 percent in education).

Following the recommendations of the Third Backward Classes Commission (Chinnappa Reddy Committee, 1990), which observed that certain Muslim groups fulfilled the requisites of the backward classes category, the Janata Dal Karnataka government headed by H.D. Deve Gowda provided 4 percent reservations to 36 Muslim castes which were by then already a part of the Union OBC list.

However, the BJP government quashed the quota in 2023 and redistributed it among dominant Hindu castes, such as the Vokkaligas and Lingayats, before the assembly elections in May last year, defending its move, saying that the grant of reservation to an entire community based on religion is constitutionally impermissible.

In Tamil Nadu, the Dravida Munnetra Kazhagam (DMK) government, under the leadership of Karunanidhi, passed a law in 2007 based on the recommendations of the Second Backward Classes Commission (1985) that provided a sub-category of Muslims with 3.5 percent reservation within the 30 percent OBC quota.

Interestingly, in undivided Andhra Pradesh, such reservations saw a serious back and forth due to the constant judicial scrutiny. Initially, in 2004, based on a report by the Commissioner of Minority Welfare on the social, economic and educational backwardness of Muslims, the government provided a 5 percent quota, treating the ‘entire community’ as backward, which was struck down by the A.P. High Court in T. Muralidhar Rao versus State of Andhra Pradesh on the technical reasoning that consultation with the state Backward Classes Commission was not done, as mandated by the Indra Sawhney ruling.

Correcting the technicality while the government had re-promulgated the ordinance as a law in 2005, the same was again struck down by a seen-judge Bench of the Andhra Pradesh High Court in B. Archana Reddy versus State of Andhra Pradesh, reasoning that the benefit could not be extended to the ‘whole community’ without proper identification of social backwardness.

The state again referred the matter to the Backward Classes Commission and, based on its report, enacted a law in 2007 giving reservations to only 14 Muslim castes such as washermen, butchers, carpenters, gardeners, barbers, etc., which was yet struck down by the high court.

Beyond the political rhetoric, it is essential to examine the legal and constitutional basis of the OBC reservation for Muslims in India, as interpreted by the Calcutta High Court.

The appeal is pending before the Supreme Court. After the bifurcation of the state and the formation of Telangana, the Bharat Rashtra Samithi (BRS) (formerly Telangana Rashtra Samithi or TRS) government passed a law in 2017 proposing 12 percent reservation for OBC Muslims on the basis of the reports of the G. Sudhir (Backward Classes) Commission.

Since the implementation would result in a breach of the 50 percent ceiling in Indra Sawhney, it was referred to the Union government for inclusion in the Ninth Schedule, but the Union government did not introduce the proposal in the Parliament.

Judicial construction of minority: OBC reservations

A perusal of judicial pronouncements on Muslim reservations in particular and minority reservations in general shows that such quotas among OBCs are largely judicial constructions due to the broadly worded nature of Articles 15 and 16 of the Indian Constitution.

Thus, it is important to ascertain the exact dictum of the courts to determine what is a ‘constitutionally valid’ version of minority reservations. On a fundamental note, the distinction between caste-based and backwardness-based reservations was highlighted in Jarnail Singh versus Lachhmi Narain Gupta (2019), thereby clarifying that the constitutional intent of reservations is not just restrictively made but is a much broader tool of social justice.

To start off, the landmark ruling in Indra Sawhney contains numerous concrete observations that form the law of the land. Regarding the competent body entrusted with the function of sub-classification, it must and can ‘only’ be done in consultation with the Commission for Backward Classes (reiterated concretely in Muralidhar Rao versus State of Andhra Pradesh).

If the state Backward Classes Commission proposes a set of classes, the state needs to render cogent reasons when it disagrees with such recommendations of the commission.

It was held that a class must not only be found backward simpliciter, but there must also be identifiable and acceptable data that the class is not adequately represented in the services of the state.

Specific to the question of religious minorities, it was noted that “religion can be the starting point of the process of identification of the backward classes but has to end with other justifiable factors, necessitating reservation”.

To further deconstruct, the court goes on to observe that “in a particular state, the Muslim community as a whole may be found socially backward, as in Kerala” (Para 80).

Hence ‘community’ is not just restricted to caste-based groups, but any other, including religious groups. T. Muralidhar Rao, as pointed out above, directly dealt with Muslim reservations in Andhra Pradesh, which were struck down by the Andhra Pradesh High Court.

Infamously, while this judgment is oft-cited as a justification to scrap religious minorities, the dicta, however, must be clearly understood. The court highlights that “reservations for Muslims or sections/ groups among them, in no manner militate against secularism, which is part of the basic structure of the constitution” (Para 111).

Relying on an earlier landmark ruling in M.R. Balaji versus State of Mysore (1962), the court noted that “Muslims or for that matter Christians and Sikhs etc., are not excluded for the purpose of conferring the benefits under Articles 15(4) or 16(4)” (Para 28).

OBC reservations are distinct from the constitutionally envisioned Scheduled Caste and Scheduled Tribe reservations.

Furthermore, the courts, throughout, specifically emphasised the role of objective material and data on the actual backwardness of the communities. In Ram Singh versus Union of India [Jat reservation judgment (2015) 4 SCC 697], it was held that the inclusion of classes as OBCs must be based on present-time or contemporary data (Para 49).

In B.K. Pavithra versus Union of India [(2019) 16 SCC 129], the court provided a definitive, broad yardstick to ensure normative analysis— both quantitative and quantitative scrutiny of normative values of Constitutional morality— along with empirical analysis of data (Para 102).

The reason for such a stringent emphasis on backwardness data is to ensure, as cautioned in Muralidhar Rao and Ram Singh, the elimination of the creeping of extraneous considerations motivated by pressures of political expediency and without due regard to the nature and degree of backwardness.

In the absence of this, the very evil of discrimination that is sought to be remedied by reservations would be in danger of being perpetuated in reverse at the expense of merit and efficiency and contrary to the interests of the truly backward classes.

What does the Calcutta High Court add to these precedents?

On a broader note, closer scrutiny of the 211-page judgment of the Calcutta High Court reflects a strict scrutiny model of evaluating the data submitted and relied on by the West Bengal Backward Classes Commission.

The high court adopted contextual interpretation as the principal tool for striking down the OBC certificates for 77 Muslim classes, citing the then-prevailing circumstances and the timeline in which the state Backward Classes Commission had come up with its recommendation.

The court, however, does not rest here but goes on a much-elaborated reasoning to criticise and invalidate every aspect of the manner in which reservations were conferred.

From a perusal of the circumstances, the statutory provisions and the functioning of the West Bengal Backward Classes Commission, the court finds that the report submitted indeed does not emanate from the objective consideration of the State Backward Classes Commission (as necessitated by Indra Sawhney), but by the state executive itself, through the informal and non-independent Cultural Research Institute, a wing of its own Backward Classes welfare department, utterly lacking functional independence, thereby falling foul of Indra Sawhney.

Since it was through the provisions of the newly enacted West Bengal Backward Classes (Other than SC and ST) (Reservation in Posts) Act of 2012, the court struck down a few of its provisions as unconstitutional and read down the meaning of others to give meaning to the mandatory consultation with Backward Classes commission as stipulated in Indra Sawhney.

Moreover, the doctrine of excessive delegation was further roped in as a justification for striking it down. By adopting a literal construction of the Indra Sawhney ruling, the court also refuses to take into consideration the authoritative Sachar Committee and, in fact, goes to the extent of questioning constitutional competence under Article 340 (Para 103).

In terms of the actual report submitted, the court declares it devoid of any objective consideration by invalidating each and every of the 77 groups’ inclusion. In some instances, the total population was not disclosed to assess if the substantial population is represented or not. Even in cases where the total population is disclosed, no adequate assessment is made by confining the survey to certain areas only (less than 5 percent).

In this respect, the high court had expressly stated the exercise as lacking an “adequate” evaluation of backwardness. Such a suspicious approach over “sampling” falls foul of the binding precedent of the Supreme Court in B.K. Pavitra, wherein the court had categorically held that sampling methodologies are a scientifically valid methodology for the collection of data (while scrutinising the Ratna Prabha Committee Report on backwardness in Para 99).

Merely adopting a recourse to sampling methodologies, the committee cannot be held to have acted arbitrarily, and its conclusions cannot be said to be based on any extraneous or irrelevant material.

In Karnataka, the BJP government quashed the quota in 2023 and redistributed it among dominant Hindu castes, such as the Vokkaligas and Lingayats, before the assembly elections in May last year.

Lastly, by scrutinising the “lightning speed” within which the entire exercise was completed— the declaration by the chief minister, preparation of the report by the department, and its authorisation of the Backward Classes Commission was done within five months— the court interpreted such an exercise as being an electoral tool in the hands of the state government.

While eminent constitutional law scholar Faizan Mustafa has expressed doubt on the too far-fetched scrutiny of the high court in adopting such rigorous strict scrutiny, the same, it is argued by the author in this article, can be seen as a progressive and welcoming role of the writ court, which is further justified by adopting a strict interpretation of the guidelines in Indra Sawhney and earlier rulings.

If the high court had not adopted the higher threshold of scrutiny through contextual interpretation, the ill effects against which Muralidhar Rao and Ram Singh caution, i.e., the creeping of extraneous considerations motivated by pressures of political expediency, would have been an obvious consequence.

There is no doubt that Muslims are a religious minority community in India, and there is no doubt that OBC reservation can and ought to be extended to any religious minority, including Muslims.

However, from a balancing standpoint, the court should have further expanded contextual interpretation to the context in which the present judgment was delivered, i.e., amid the existing political and electoral turmoil over Muslim reservations, to ensure a counter-majoritarian role of the judiciary to act as custodian of minority rights.

There is no doubt that Muslims are a religious minority community in India, and there is no doubt that OBC reservation can and ought to be extended to any religious minority, including Muslims.

Thereby, it would have been a much necessary counter-majoritarian adjudication if the high court had sent the data back to the West Bengal Backward Classes Commission to come up with accurate data findings and, in the interim, put the OBC certificates on suspended animation.

Such was the method adopted in the similarly placed Muralidhar Rao ruling, which also exactly involved quashing Muslim reservations on procedural grounds, which had allowed the Andhra Pradesh government therein to come up with further data and justify its stand.

This would have prevented political parties (the BJP, in this case) from using the judgment as an electoral campaign to interpret it negatively and to further bolster its stand in scrapping Muslim reservations as a whole.

What next?

Despite the strict judicial attitude adopted in this decision of the Calcutta High Court, close scrutiny of the judgment and the manner in which it read down the provisions of the 2012 Act show that the court is concerned only with inadequate data submitted in contravention of the established procedure, but not by the very concept of religious minorities reservations.

In undivided Andhra Pradesh, such reservations saw a serious back and forth due to the constant judicial scrutiny.

The high court has, in fact, reiterated the dictum of the previous rulings by also holding that the identification of backward classes can indeed start from religion. It is this larger essence that a vigilant citizen must understand but not get swayed away by mere political claims and counter-claims.

Mokshith Venkata Shiva Bhyri is a fourth-year BA.LLB (Hons) student at the NALSAR, Hyderabad.