West Bengal’s affidavit in Supreme Court reveals how Muslims managed to make it to OBC list

A major row has erupted in West Bengal after Chief Minister Mamata Banerjee’s government included the Muslim community in the Other Backward Classes (OBC) quota without due diligence, just to satisfy her party’s minority vote pool. It is noteworthy that the All Indian Trinamool Congress administration has not only continued but even strengthened the appeasement policy adopted by the previous Communist Party of India (Marxist) government in the state. Today, the AITC regime is being criticised for arbitrarily introducing 77 castes, including 75 Muslims, into the OBC category.

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

Meanwhile, the West Bengal government has filed an affidavit and defended its decision before the Supreme Court after a bench headed by Chief Justice DY Chandrachud in its August 5 order sought details of the procedure adopted for inclusion in the OBC category. However, the stunning details contained in the order have revealed how the government has flouted all norms to please its Muslim voters.

A complex three-level process, but many warning signs

The government claimed that the list of OBCs was expanded through a complex three-stage process, which involved two surveys and a hearing by the Backward Classes Commission, The Times of India reported. On the other hand, it was revealed that for some Muslim groups, the process was concluded in less than a day, which would have been impossible otherwise given the complexity of the work and the speed at which the government machinery functions.

The Khotta Muslim community filed its nomination on 13 November 2009 and was included in the OBC list by the West Bengal Commission for Backward Classes, which recommended it the same day. Similarly, the Jamadar Muslim group, which filed its nomination on 21 April 2010, was given the OBC category the same day. The OBC Commission acted with equally astonishing speed. It recommended the inclusion of the Gayen and Bhatia Muslim communities in a day, the Chutor Mistri Muslim community in four days and the addition of a dozen other Muslim groups to the OBC list in less than a month.

There have been instances where the sub-categorization survey was conducted even before the community members filed an application with the Commission for being categorized as OBC. While the surveys for the Kazi, Kotal, Hazari, Layek, Khas and some other Muslim communities were completed in June 2015, their applications were submitted much later, even a year or two later. “It was only after a detailed survey and/or after considering the material placed before it in oral or documentary form, that a final report on each of the 34 communities was prepared, along with the final recommendation of the Commission,” the West Bengal government contended before the Supreme Court.

According to the affidavit submitted by Abhijit Mukherjee, the process begins with a request from communities seeking inclusion in the OBC list, providing information on the name of the class, its population size, area of ​​concentration, as well as social, educational, marital, occupational and economic data. Abhijit Mukherjee is the joint secretary and ex-officio deputy commissioner of reservation in the Backward Classes Welfare Department. The affidavit claims that the state has meticulously followed the three-tier process.

The commission conducts field surveys through its members (before 2012) or through the state government’s Cultural Research Institute (CRI) and anthropologists working with them (after 2012) immediately upon the filing of an application. The commission informs the public of the hearing of the application and of any opposition to the application during this survey. The commission reviews the documents, survey responses, questions and evidence presented at the public hearings before making a decision on whether to approve or reject the proposal. The state has stated that this recommendation is “normally binding” on the government upon acceptance and lists the group on the OBC list. The cabinet is then asked to approve it and is then published in the official gazette after approval.

On August 5, the Supreme Court ordered the West Bengal administration to “explain the process” used to classify 77 communities as OBCs between 2010 and 2012, as well as the kind of investigation that was conducted into the twin issues of social and educational backwardness and inadequate representation in public services. The Mamata Banerjee government has filed an appeal against a Calcutta High Court order seeking to revoke the inclusion of these communities in the OBC list without following proper protocol. It is noteworthy that the Supreme Court has refused to stay the High Court order.

Observations of the Calcutta High Court

In May this year, a two-judge bench of Justices Tapabrata Chakraborty and Rajasekhar Mantha quashed the Other Backward Classes (OBC) certificates issued to 77 groups by the Left and Trinamool Congress governments between March 5, 2010 and May 11, 2012. The judges observed that the West Bengal administration had “extensively” used the 2006 Sachar Commission report, which famously concluded that Muslims in India were worse off than members of the Scheduled Castes (SCs) and Scheduled Tribes (STs). The Sachar Commission report used by the state to support allegations of backwardness of Muslims and classify them as OBCs was not constitutional, the Calcutta High Court ruled.

The court also criticised the negligence of the Commission appointed by the West Bengal government in not conducting a thorough investigation to ascertain the degree of social deprivation of the groups admitted to the OBC category. It made it clear that it was untenable to notify the OBC categories between 2011 and 2022 based solely on the outdated report of the Mandal Commission.

Further, the Calcutta High Court noted that by enacting the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012 and removing the involvement of the Commission in the process of identifying new OBCs, the West Bengal government had indulged in a “fraud on the constitutional power of the State”. The learned judges further highlighted how the Commission had ignored constitutional provisions in order to classify Muslims as OBCs.

The court also pointed out that the Department of Anthropology of the University of Calcutta had collaborated with the previous Left government to justify the decision to announce the creation of the first batch of new OBCs based solely on religious grounds. The West Bengal administration was severely criticised by the judges for treating Muslims as a “political commodity” and using them to advance its political agenda.

“I do not accept the verdict of the Calcutta High Court. The reservation for OBCs will continue as it is,” Mamata Banerjee said after the Calcutta High Court cancelled around 500,000 OBC certificates issued after 2010 by her government. The National Commission for Backward Classes (NCBC) had found in June 2023 that OBC certificates had been issued to Rohingyas and undocumented immigrants from Bangladesh in West Bengal. The NCBC further found that while Hindus constitute the majority of West Bengal’s population, there were more Muslim OBC castes in the state.

Background to the controversy

Between 1994 and 2009, the CPIM government, which ruled the state before the formation of the TMC, designated 66 categories of people as OBCs. The Muslim community accounted for about 12 of these categories. The CPIM government issued seven executive orders between 5 March and 10 September 2010 recognising 42 more categories as OBCs, presumably in view of the 2011 elections. The Muslim community accounted for 41 of them. As a result, these new groups were eligible for representation and reservations in jobs offered by the West Bengal government. A 10% reservation for Muslims in government jobs was also announced by the CPIM in February 2010 to better cater to its Muslim vote bank.

Mamata Banerjee maintained the policy of appeasement of the Left regime after taking charge as the Chief Minister of West Bengal in May 2011. Thirty-five additional new classes were created as OBCs by the TMC administration in an executive order dated 11 May 2012. Thirty-four of these classes belonged, as expected, to the Muslim community and in just two years, the Left and TMC governments added 77 new classes (of which 75 belonged to the Muslim minority) to the OBC group. The 77 groups were divided into OBC A (More Backward) and OBC B (Backward) categories by the Mamata Banerjee government, which also passed the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012.

On January 18, 2011, a man named Amal Chandra Das filed the first petition challenging the Left government’s decision. He challenged the decision to designate 42 castes as OBCs on the basis of religious beliefs alone. He pointed out that the survey conducted by the Commission, which was set up by the West Bengal government to help identify OBCs, was prefabricated and the classification was not based on any reliable evidence.

Between 2012 and 2020, Amal Chandra Das, Purabi Das and Atmadeep filed three other petitions challenging the constitutionality of the West Bengal Backward Classes (Other than Scheduled Castes and Scheduled Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012, and a number of its provisions. All four petitions were tagged and heard simultaneously by the Calcutta High Court, which delivered its decision on May 22.