The Calcutta High Court’s flawed judgment on OBC reservations for Pasmanda Muslims sets a dangerous precedent

The Calcutta High Court's recent judgment presents a melting pot of flawed constitutional interpretations and conclusions. Upon peeling through the layers, it appears the verdict emanates from the predominance of higher caste judges in the higher judiciary and is a precarious step against the inclusion of Muslims for reservations in the Other Backward Classes quota.

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LAWYERS and judges, like everyone else, perceive the world from the universe of social meaning they inhabit.

Such perceptions are always partial and limited, leaning towards the known and the familiar. However, the nature of the judicial process is such that it must unearth mutually unknown and unfamiliar but competing meaning complexes to protect the weak from the powerful.

The most plausible method to perform this task is to incorporate as much social diversity as possible in the justice delivery system.

It means that the leadership of the Bar and the Bench must be representative of different social classes living in diverse social worlds of meaning.

The profound tragedy of the Indian judicial system, like most other limbs of governance, is that it has remained cocooned inside 'Brahmin Savarna' representation, with a very nominal sprinkling of Ashraaf castes.

Both the Bar and the Bench have been infested with higher castes which represent no more than 10 percent of the Indian social world. Legal reasoning based on such a constricted sense of social totality is condemned to remonstrate against social justice provisions designed to accommodate the remaining 90 percent of unrepresented castes in public institutions.

As a result, the judicial process is stunted, unable to develop a robust jurisprudence for social democracy.

The judicial process is hopelessly reduced to policing social democracy, instead of being a harbinger of hope. This tendency is reflected most acutely in cases involving adjudication of competing caste interests.

(Un)statutory remedies

The Calcutta High (Caste) Court (CHCC) judgment in Amal Chandra Das versus The State of West Bengal, WPO 60 of 2011 delivered on May 22, 2024, is symptomatic of such an unjust propensity.

Also read: Are OBC reservations for Muslims constitutional? Implications of the Calcutta High Court judgment

From the statement of facts to the concluding section, the Amal Chandra judgment is a blatant attempt by the CHCC to introduce religious consideration in preparation of the Other Backward Classes (OBC) list.

Throughout the judgment, the court purposefully uses words such as 'class' and 'classes' instead of 'caste' and 'castes' to conceal the backward caste nature of the OBC category for reservation purposes.

The judgment excludes 77 historically marginalised castes from the OBC list which should have been included in all public institutions with the commencement of the Constitution in 1950 or earlier but were not included until 2010.

In this process, the sub-categorisation of the OBC list into OBC category A (more backward) and OBC category B (backward) was also quashed.

To achieve these twin results, the CHCC has also struck down certain provisions of the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) Reservation of Vacancies and Posts Act of 2012 (2012 Act) without any challenge by the petitioners and without any constitutional basis.

The court fully subscribed to the petitioners' reductionist claim that the impugned 77 backward castes included in the OBC list could be nothing more than Muslim.

In sociological terms, most of them are Pasmanda castes belonging to the Ajlaf (Shudra) and Arzal (Dalit) categories. So, even Dalit Pasmanda castes that are part of the Scheduled Castes (SC) list but remain excluded due to the communal (Constitutional Schedule Castes) Order, 1950 were eventually excluded from the West Bengal OBC list.

In order to ensure such an exclusion, the CHCC usurped the jurisdiction of the West Bengal Commission for Backward Classes, constituted under Section 9(1) of the West Bengal Commission for Backward Classes Act, 199 (1993 Act), which is a statutory forum dedicated to addressing the issues of over- and under- inclusion.

The petitioners had not filed any complaint as regards the over-inclusion of any caste before the commission. Yet, instead of directing the petitioners to the proper forum, the court excluded even those castes that are part of the Union OBC list, as applicable in West Bengal without even impleading those castes in the case.

To achieve this result, the court simply declared that the remedies provided under Section 9 of the 1993 Act cannot be characterised as a statutory remedy without pausing to reflect on the absurdity of such a declaration.

Also read: Sub-classification of Scheduled Castes: Homogeneity in forwardness, non-homogeneity in backwardness

If a remedy provided by a statute can not be characterised as a statutory remedy then what remedy is a statutory remedy anyway? Ironically in Para 49 of Amal Chandra, the court refers to the part of the judgment delivered in Indra Sawhney versus Union of India, 1992 that mandated that complaints of over- or under-inclusion must be preferred before the commission rather than the courts.

The commission versus State's powers

How did the CHCC develop its legal reasoning for such an unjust social exclusion of backward castes from the state OBC list?

In the first move, the court made light of the maintainability issues. It turned the public interest litigation (PIL) jurisprudence on its head by dropping fancy phrases such as transformative constitutionalism and entertained the petition, violating its own writ rules.

Further, the court elevated the commission above the state legislature and the executive to hold that the decision to identify OBC castes and their sub-classification is an exclusive procedural prerogative of the commission.

The slightest infraction of this procedure would vitiate the entire exercise of the power to identify and classify OBCs by the legislature and the executive as if the commission is some kind of supra-constitutional body observing a procedure mandated by the Constitution.

However, all the judgments cited by the court in support of this conclusion from Para 38 to 41 in Amal Chandra militate against such a conclusion.

The next move is even more transcendental. When the commission is, in fact, found to have made a positive recommendation for the inclusion of 77 castes in the OBC list after following the procedure established by law, both the procedure and the law are condemned mercilessly.

The court magically discovers the requirement of public hearings in the procedure to be followed by the commission and applies it to the case to reach its conclusion in complete disregard of the principles of natural justice.

Similar treatment is given to the settled law that PILs cannot be maintained in service matters.

The CHCC wrongly refers to the decision laid down in Jaishri Laxmanrao Patil versus The Chief Minister, Maharashtra, 2021, also known as the Maratha reservation case, whereby the issue did not involve over- or under-inclusion in the OBC list to be dealt with by the state Backward Class Commissions but a separate 16 percent reservation over and above the judicially prescribed 50 percent limit.

Reference to the Jat reservation case is similarly misplaced where the decision of the Union government was quashed as it was made despite the express refusal of the National Commission for Backward Classes (NCBC) to declare Jats backward all over India.

These misleading references are followed by the invalidation of Section 9 of the 1993 Act as amended by the Amendment Act of 2010. All that this amendment did was expand the scope of Section 9 to enable references and requests by the state government and keep the ordinarily binding nature of the advice of the commission to requests for inclusion and exclusion made by citizens as was the case in the pre-amended Section 9 of the 1993 Act.

Also read: The right to religion and the Shudra predicament

The question that arises is, which part of the Constitution is violated in the legitimate exercise of legislative powers on this occasion? The answer: none whatsoever.

The CHCC makes a mountain of a molehill by reading Section 9 along with Section 11 of the 1993 Act, which mandates the State to consult the commission while revising the OBC list.

However, this mandatory consultation with the commission under Section 11 remains unchanged. The court overreads post-amendment Section 9 to imagine a bare possibility that the mandatory consultation under Section 11 might be diluted by a cunning executive.

Yet, even if that possibility can be imagined by a fantasy-oriented mind, is it sufficient to strike down a constitutionally valid exercise of legislative power by the State? The expression 'ordinarily binding' cannot be stretched to mean 'compulsorily binding', which is what the court had in mind while striking down the amended Section 9 of the 1993 Act.

In any case, the state legislature has full power to repeal what it can enact. So, the state legislature could validly repeal the whole provision regarding the 'ordinarily binding' nature of consultation with the commission under Section 9 of the 1993 Act, if it deems fit.

However, it is not surprising to witness that the higher caste courts, including the Supreme Court, feel entitled to dictate legislation to the legislature and executive, whether Union or state, when it comes to limiting the rights and empowerment of SC, Scheduled Tribes and OBCs cutting across religion.

Sections, amendments and interpretational errors

In the instant case, the court has struck down the amended Section 9 of the 1993 Act in the context of sub-classification, which was neither envisaged by the original Section nor the amended Section.

Curiously, such a legitimate amendment to Section 9 of the 1993 Act is called a "fraud on power if not a fraud on the Constitution" by the court, which is rather an acknowledgment of the fact that no constitutional infirmity was involved in the exercise of legislative power by the state.

Frenetic quotations from judgments on statutory interpretation in Paras 86–90 in Amal Chandra and very generic conclusions drawn from them do not justify the decision by the court to apply the principles of 'contextual interpretation' and 'reading into' principles of interpretation to hold that even in the post-amendment Section 9 of the 1993 Act, it is obligatory on the part of the State to consult the commission.

It even holds that the word 'consult' as used in Section 11(2) of the 1993 Act must be read as 'concurrence'.

Also read: Karnataka scraps separate reservation for Muslims; increases quota for Vokkaligas, Lingayats instead

Section 9 (pre and post-amendment), Section 11 of the 1993 Act and the Indra Sawhney judgment do not remotely warrant such a conclusion.

Ever since the case of Supreme Court Advocates-on-Record Association & Anr versus Union of India, 1993, also known as the 'Second Judges case', the higher caste judiciary has developed a penchant for converting 'consultation' into 'concurrence' in order to safeguard the interests of higher castes.

In Paras 102–110 in Amal Chandra, the CHCC spends its energy in playing down the data collected by the Sachar Committee regarding the backwardness of Pasmanda castes in every walk of life as 'old'.

The truth is, the data collected by the Sachar Committee had not even aged by four years when it was referred to by the commission and the West Bengal state government.

By claiming the Sachar Committee's data to be outdated, the CHCC overlooked the provision of Section 11 of the 1993 Act, which stipulates a minimum period of ten years to periodically review the data. Conveniently, the high court pretermitted that much older data was used to give effect to the recommendations of the Mandal Commission in 1992.

Census data is also collected after a gap of ten years, which is used to devise policy and legislative measures in the intervening period. However, such details hardly bother the CHCC.

The same spirit animates the court's rejection of sub-classification of the OBC list into 'more backward' and 'backward' categories by the state based on the Cultural Research Institute of the Department of Anthropology of the University of Calcutta's report on the subject.

This when the Indra Sawhney judgment had expressly held that as long as such a sub-classification is reasonably done, courts may not intervene. Even the commission's submission that it does not have the jurisdiction and power to advise the state as regards the need for sub-classification did not find favour with the Supreme Court.

Justice late can also be eventually denied

Paras 111–135 in Amal Chandra are a manifestation of the CHCC's discovery of the commission's power and directing the commission to condemn all 77 castes immediately, without any prior notice.

Also read: SC will now hear plea challenging scrapping of 4 percent reservation for Muslims in Karnataka on May 9

However, the judgment takes an incoherent turn in Paras 130 and 131 where the commission is shown to claim that it did not have power in the matter of sub-classification but the court asserts that the commission was, in fact, consulted during this process.

What indeed is the bone of contention here between the court, the commission, the petitioners and the state? Moreover, why should the backward castes suffer because the court failed to determine the purpose of hearing the case or whether there had been any procedural confusion among state institutions?

The epistemic judicial violence becomes most palpable when, in Para 126, the court acknowledges that several persons of Muslim castes who were identified as 'backward' by the Mandal Commission in the 1990s could have been included in the state OBC list in 1992 but holds their non-inclusion by the state back then against them when they were finally included in 2010 and 2011.

What could those poor backward castes do when the entire State machinery denied them justice for decades but the CHCC did not intervene and when the State finally woke up to correct the injustice, the CHCC denied them? Instead of chiding the State for delaying justice to those Pasmanda castes, the court frowned upon the State for finally waking up to the call of justice!

With suo moto power comes irresponsibility

Paras 136–146 are dedicated to making light of the presumption of constitutionality of a statute in order to invalidate certain parts of the 2012 Act. The petitioners had not even argued that the state legislature did not have the competence to enact the 2012 Act.

Yet, the CHCC gets alarmed by Section 2(h) of the 2012 Act which merely defines 'Other Backward Classes' to mean such classes of citizens as specified in Schedule I of the Act, including such classes as the state government may, by notification, specify from time to time. It is a standard statutory method of defining a subject matter for the purpose of subjecting it to legislative regulation.

But the court imagines the possibility of excluding the commission's role in the process and reads it down, calling it a fraudulent exercise of the legislative power under Article 16(4) of the Constitution solely because the Indra Sawhney judgment envisages a commission to decide complaints of over-inclusion and under-inclusion in the OBC list to reduce the burden of courts.

Such a commission does, in fact, exist under the 1993 Act. Yet, the court additionally reads it into the definition clause by imagining a mere possibility that such a commission may not be consulted in preparing the OBC list.

Also read: Explained: The Patna HC's striking down of quota hike to 65 percent

If this kind of 'mere possibility of abuse of power' becomes the standard of judicial review, all legislative and executive action will come to naught. It comes as no surprise that all the judgments that the court cites in Paras 165–171 do not even remotely resemble the issue at hand.

In Para 173, the court curiously seeks to elevate the 1993 Act to a higher pedestal than the 2012 Act, although both are a creation of the same state legislature, operate simultaneously and serve a common purpose. 

The incoherence of the CHCC reaches its peak in Paras 178–195 whereby it strikes down the second part of Section 2(h) of the 2012 Act.

The court begins by acknowledging that the state executive has full power to make provisions for reservation and the state legislature need not make any law to that effect as settled by the Indra Sawhney judgment. Later, it gets offended by the fact that Section 2(h) of the 2012 Act duly incorporates this power in its effort to streamline the process of declaring certain castes as OBC.

The court deems it a parallel reservation of similar powers to the executive under a statute and terms it ex facie illegal and arbitrary. How can the state legislature parallelly reserve powers to the executive which the executive already has in an illegal and arbitrary manner?

How can the legislature excessively delegate a power to the executive that the executive already possesses in full? In deeming so, the court presents the finest example of mind-bending legal reasoning.

In its delirium, the court, in Para 180 of Amal Chandra, asserts that such a law should have factored in Article 213 of the Constitution which relates to the power of the governor to promulgate Ordinances during a recess of the legislature.

The reason for the assertion is revealed in Para 185 of Amal Chandra: the court perceives a notification by the state executive to specify OBCs under the second part of Section 2(h) of the 2012 Act as an 'Ordinance' to which the discipline of Article 213 could apply.

A shambolic climax

The court goes on to cite judgments on the promulgation of Ordinances and astonishingly refers to the doctrine of separation of powers. It even perceives this part of the 2012 Act as an attempt at overreaching the power under Article 368 of the Constitution of India. One only hopes that serious strictures are passed against these judges who demonstrate such an active lack of elementary constitutional sense.

Also read: Sub-categorisation within Backward Classes as per Indra Sawhney continues to be good in law: Supreme Court on Day 3

In the same zest, the court also strikes down Section 16 of the 2012 Act relating to the power of the state government to amend any Schedule as consequential to the invalidation of the latter half of Section 2(h).

The doctrine of pith and substance is mysteriously brought into play to justify this overreach although no one, not even the court itself, raises the question of overlap between different entries of the Seventh Schedule in enacting the 2012 Act.

Invalidation of Section 16 of the 2012 Act, in turn, is used to read down the word 'lists' under Section 2(f) of the 2012 Act and to confer the state legislature with exclusive power to make provisions for reservation to the exclusion of the state executive altogether.

Section 5(a) of the 2012 Act, that provides for the sub-classification of OBCs, is also thrown out for not laying down to be exclusively done by the state legislature in exclusive consultation with the commission.

The proviso to Section 5(a) of the 2012 Act too, which envisages the state executive fixing the percentage of OBC reservations, is read down in a similar egregious fashion.

All that reading down and invalidation is brought together in a climax of sorts to nullify the executive Orders that were issued under the 1993 Act between April 2010 and May 2012.

Not a single provision of the original 1993 Act was invalidated; rather, it was glorified over the 2012 Act. How then, could the executive orders issued under the 1993 Act before the passage of the 2012 Act be nullified?

In a freak of reasoning, the CHCC first reads Section 19 of the 2012 Act meant to save the Orders issued under the 1993 Act as subsuming those Orders in the former Act. Now, as the executive stands disempowered through judicial interpretation to issue any such Order under the 2012 Act, the executive Orders validly issued under the valid 1993 Act also stand nullified.

Much of this operation is done by inventing the possibility of non-consultation with the commission. The extent to which this entire operation is botched up becomes glaring from the fact that the commission was indeed consulted at every stage of the classification of those 77 castes as OBCs.

The CHCC seems to leave only one option for the state executive: it should reject the recommendations of the commission when it is positive for inclusion and accept it when it is negative.

Also read: AMU minority status case: An opportunity to repair the illusion of a secular republic

This approach is substantiated by the court in Paras 260–265 of Amal Chandra. The court sprinkles phrases such as 'procedural impropriety', 'colourable exercise of power' and 'manifest arbitrariness' in Paras 309–319 of Amal Chandra for decorative purposes rather than for any legal relevance.

Judicially invalidated promises

The CHCC opines that the commission's recommendation for the inclusion of 77 castes in the OBC list was hastily done, even though such a recommendation was due for decades.

If a decision is delayed by decades and is eventually made based on the recommendation of the commission which the court insists is the only constitutional procedure to decide, why is it still subject to the court's veto?

Para 269 of Amal Chandra makes it clear that the only reason why the CHCC reached its verdict lies in the fact that it perceived these 77 castes as Muslims and not as backward castes.

In the same vein, in Paras 320–332 of Amal Chandra, the court strenuously takes up the question of whether religion can be the sole basis of the commission's recommendation under Article 16(4) of the Constitution, when neither the commission nor the legislature or executive make any such assertion throughout their history.

Further, the court seeks to delegitimise the commission's positive recommendation for the inclusion of these castes in 2010 by linking it with the then chief minister's public announcement of a 10 percent reservation in government jobs for the Muslim community in anticipation of the 2011 state assembly elections.

This is a very dangerous formulation for democratic politics. In any democratic polity worth its name, promises relating to the upliftment of weaker, poorer, disempowered and marginalised social classes are routine.

If such promises become an unbridled source of judicially invalidating any legislative or executive measure that is taken to help those social classes just because some reference about them was made by the political class, then what would be left of politics except for promises for further strengthening economically and politically strong social classes?

Also read: Women's Reservation Bill: A missed opportunity for OBCs and Muslim women

In the recently concluded 2024 general elections, both the ruling party and the Opposition alliance made repeated promises to the Dalit, Pichda, Adivasi and Pasmanda classes. Does this mean that post-election, all laws and policies concerning these Bahujan classes can be judicially invalidated?

A summary of the commission's reports on the recommendation for the inclusion of the 77 castes in the OBC list prima facie shows that it contains some of the most marginalised and historically excluded caste groups.

By judicially excluding these castes from the OBC list based on some flimsy deficiencies discovered by hyper activists, the court acted in complete disregard to the established canons of judicial review and it is nothing short of a fraud on democracy and the Constitution.

The fraud becomes even more pronounced when the repeated discovery of 'deficiencies' by the higher judiciary, as indicated in Para 280 of Amal Chandra, could easily be overcome by the caste census but no court has ever ordered it thus far.

Food for thought

Amal Chandra serves as a reminder for us to turn our gaze towards the extent of inclusion and social diversity in the higher judiciary itself. All studies and data since the commencement of the Constitution establish that the higher judiciary has remained an exclusive preserve of the male higher caste gentry.

In the absence of proportionate representation of the marginalised lower castes, the higher judiciary becomes stunted as the higher caste judiciary. As a result, it fails to appreciate the social complexity of Indian society and repeatedly delivers unconscionable judgments on social relations mediated through legal agency.

Empirical and normative analysis of the social diversity in the higher caste judiciary (or lack thereof), has become inevitable to nourish it with democratic values and sensibilities.

This can only be done by placing the legal education of Dalit, Pichda, Ati-Pichda Adivasi and Pasmanda groups at the heart of the Bahujan movement for social democracy.