Gujarat HC notice in plea for Permanent, Statutory OBC Commission [Read Petition]

The Gujarat High Court has issued notice in a PIL calling for the dissolution of the Gujarat Other Backward Commission, and the constitution of a permanent State Backward Classes Commission in its place.

The petition, filed by the Sardar Patel Seva Dal, points out that the current Gujarat Other Backward Commission was only introduced under an executive fiat, contrary to the Supreme Court’s orders in Indra Sawhney v Union of India.

Inter alia, the Indra Sawhney case had called for the constitution of permanent commissions at the state and central levels, to examine requests for inclusion and complaints of over inclusion or under inclusion in the list of Other Backward Castes (OBC).

Accordingly, the National Commission for Backward Classes was set up under the National Commission for Backward Classes (NCBC) Act, 1993.

In Gujarat, a resolution passed by the Social Welfare Department lead to the constitution of the Gujarat Other Backward Commission, which was tasked with entertaining, examining and recommending for the inclusion of backward classes in Gujarat.

The petition, however, argues that such a body under executive fiat is not what was envisioned by the Indra Sawhney ruling. Rather, it calls for a permanent body to be established under a legislative act to take over the task.

The petitioner, through Advocates Vishal J Dave and Nipun P Singhvi submitted that the inclusion and exclusion of backward classes without having a statutory body amounts to non-compliance of the law laid down in Indra Sawhney.

Additionally, the petition has also raised concerns that present OBC lists are based on historical wrongs and antiquated data. This, despite directions in Indra Sawhney that there should be a periodic revision of the persons included in the list of OBC, so that those persons who have progressed adequately may be removed from the OBC list.

Section 11 of the NCBC Act also requires that the Government conduct periodic revision every ten years, in consultation with the Commission, to exclude socially advanced persons and creamy layer castes or tribes.

However, neither has such revision been carried out nor is there contemporaneous data on the basis of which such revision can be made. As noted in the petition,

“Inclusions and exclusions in the reservations list can be done only with the help of quantifiable data. However, such figures are not available for the last 70 years or so since the census reports provided the results of such caste-wise figures only until 1931.”

In result, the petition points out that there has been a gross misuse of Article 340 of the Constitution of India (dealing with provisions for the welfare of OBCs) by successive governments over the last seventy years. This meant that “creamy layer” communities were allowed to reap benefits meant for backward classes.

“… various castes/races or groups/tribes have been included in the schedule without making any empirical study and that too for political consideration and no periodic revision has been done as per Section 11 of the NCBC Act, 1993.

On the contrary, not a single community/caste/tribe has been excluded from the OBC list. The Hon’ble Supreme Court on various occasions has commented very adversely on the manner these provisions have been abused for ulterior motives. That till date no steps have been taken for the exclusion of affluent castes/tribes from the OBCs schedule.

However, the Governments/political parties have been encouraging the inclusion of more and more castes/tribes in the schedule list instead of excluding the advance castes/tribes who have enjoyed the benefits of reservation for a longer period and have become advanced in all respects i.e. socially, educationally and politically etc.”

The petitioner has argued that if periodic revision is not implemented to address this problem, the object of the OBC reservation would be defeated.

“And if the periodic revision of lists by the Central and State Govt. is not done every succeeding 10 years for exclusion of Castes/tribes who has ceased to be backward from the OBCs list then the whole objective of equality and equal opportunity enshrined in Articles 15(4) and 16(4) of the Constitution appears to have been defeated.”

The petition also refers to the recent case of Ram Singh v Union of India had also emphasised on the need to ensure that OBC lists are based on current data. Further, for meaningful classification, it was also opined that the benefits should not be restricted to backward castes alone, but rather other socially backward classes should also be accounted for under the protective schemes.

On hearing initial submissions, the High Court has directed the state to file its reply and posted the matter for September 29.

Read the Petition: