Abstract

In a constitutional democracy, both the task of interpreting legislative text and the legality of executive action rest on the wisdom of constitutional courts. Cases involving arbitration between competing social interests often become the litmus test of the higher judiciary itself. These are occasions on which the nature of judicial process gets reflected in full glory. Recently, one such occasion arose at the Calcutta High Court when it was called upon to decide the validity of social justice laws meant for some of the most backward sections of Bengali society. However, the Court instead of standing up for the weaker sections of society adopted activists role only to perpetuate social injustice. Critical review of this judgment in the light of consistent track record of the Supreme Court and the High Courts in similar cases reveals that in the absence of proportional representation of the marginalized lower castes, the Higher Judiciary has become stunted as Higher Caste Judiciary.

Introduction

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 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 of 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 diverse social worlds of meaning. The profound tragedy of Indian judicial system, like most other limbs of governance, is that it has remained cocooned with the so called Brahmin Savarna 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% of the Indian social world.[i] 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% unrepresented castes in public institutions. As a result, judicial process gets stunted unable to develop a robust jurisprudence for social democracy. Judicial process gets hopelessly reduced to policing social democracy, instead of being a harbinger of hope.[ii] This tendency is reflected most acutely in cases involving adjudication of competing caste interests. Hon’ble Calcutta High Caste Court[iii] (hereinafter CHCC) judgment in Amal Chandra Das vs. The State of West Bengal [iv], delivered on 22.05.2024 is symptomatic of such an unjust propensity.

Facts and Issues

From the statement of facts to the concluding section, Amal Chandra judgment is a blatant attempt by the Hon’ble CHCC to introduce religious consideration in the preparation of the OBC list. The court throughout the judgment purposefully uses words like class and classes instead of caste and castes in order to conceal the backward caste nature of the OBC category for reservation purposes. The judgment excludes 77 historically marginalized castes from the OBC list which should have been included in all public institutions with the commencement of constitution in 1950 or earlier but were not included until 2010. In this process, Sub-categorization of the OBC list into OBC Category A (More Backward) and OBC Category B (Backward) was also quashed. To achieve these twin results, the Hon’ble CHCC also struck down certain provisions of the West Bengal Backward Classes (Other than Schedule Castes and Schedule Tribes) Reservation of Vacancies and Posts Act of 2012 (hereinafter 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 were Pasmanda castes belonging to Ajlaf (Shudra) and Arzal (Dalit) categories. So even Dalit Pasmanda castes which are part of SC list but remain excluded due to communal (Constitutional Schedule Castes) Order, 1950 got excluded from the West Bengal OBC list.[v] In order to ensure such an exclusion, the Hon’ble CHCC usurped the jurisdiction of the West Bengal Commission for Backward Classes (WBCBC) constituted under Section 9(1) of the 1993 Act which is a statutory forum dedicated to address the issues of over and under inclusion. The petitioners had not filed any complaint regarding 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 which are part of the central OBC list, as applicable to 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 Act of 1993 cannot be characterized as statutory remedy without pausing to reflect on the absurdity of such a declaration. If a remedy provided by a statute cannot be characterized as a statutory remedy then what remedy is a statutory remedy anyways? Ironically in Para 49, the court refers to that part of Indra Sawhney judgment[vi] which mandated that such complaints of over or under inclusion must be preferred before the Commission rather than the Courts.

Legal Reasoning for Social Exclusion

How did the Hon’ble 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 PIL jurisprudence on its head by dropping fancy phrases like transformative constitutionalism and entertained the petition in violation of its own Writ Rules. Further, the court elevated the West Bengal Commission for Backward Classes 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 WBCBC. Slightest infraction of this procedure would vitiate the entire exercise of the power to identify and classify the 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 militate against such a conclusion. But the next move is even more transcendental. When the Commission is in fact found to have made 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 requirement of public hearings in the procedure to be followed by the WBCBC and applies it in the same case to reach its conclusion in complete disregard to the principles of natural justice. Similar treatment is given to the settled law that that PILs cannot be maintained in service matters.

            The Hon’ble CHCC wrongly refers the Maratha Reservation Case[vii] whereby the issue did not involve over or under inclusion in the OBC list to be dealt by the State Backward Class Commission but separate 16% reservation over and above the judicially prescribed 50% limit. Reference to the Jat Reservation Case is similarly misplaced where the decision of the Central Government was quashed as it was made despite the express refusal of the the National Commission for Backward Classes (NCBC) to declare them backward all over India. These misleading references are followed by the invalidation of Section 9 of the 1993 Act as amended by Amendment Act of 2010. All that this amendment did was to 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 pre-amended Section 9. One may ask which part of the constitution is violated in the legitimate exercise of legislative powers on this occasion? None whatsoever. The Hon’ble CHCC makes a mountain of the molehill by reading Section 9 with Section 11 of the Act of 1993 which mandates consultation with the Commission by the State while revising the OBC list. However, this mandatory consultation with the Commission under Section 11 remains unchanged. The Court over reads post-amendment Section 9 to imagine a bare possibility that the mandatory consultation under section 11 might be diluted by a cunning Executive. However, even if that possibility can be imagined by a fantasy oriented mind is that sufficient to strike down constitutionally valid exercise of legislative power by the State? The expression ‘ordinarily binding’ can in no way be stretched to mean ‘compulsorily binding’ which is what the court had in mind while striking down the amended section 9. 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 ‘ordinarily binding’ nature of section 9 advice if it deems fit. However, it is not surprising to witness that the High Caste Courts including the apex Savarna Court feel entitled to dictate legislations to the legislature and executive, whether central or state, when it comes to limiting the rights and empowerment of SC, ST and OBCs cutting across religion.[viii] In the instant case, the court strikes down amended Section 9 in the context of Sub-classification which was neither envisaged by the original Section nor the amended Section. Curiously, such legitimate amendment to Section 9 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 from Para 86 to 90 and very generic conclusions drawn from them in no way justify the decision by the court to apply the principles of ‘contextual interpretation’ and ‘reading into’ principles of interpretation to hold that even post-amendment it is obligatory on the part of the State, in all cases, to consult the Commission under Section 9 of the Act of 1993 which would be ordinarily binding.[ix] It even holds that the word ‘consult’ as used in section 11(2) of the Act of 1993 must be read as ‘concurrence’. Neither the pre-amendment/post-amendment Section 9 or 11 nor even Indra Sawhney judgment remotely warrant such a conclusion. Ever since the Second Judges Case[x] the higher caste judiciary has developed a penchant for converting ‘consultation’ into ‘concurrence’ in order to safeguard the interests of higher castes.  

Fiddling with Data and Sub-classification Blues

From Para 102 to 110 the CHCC spends its energy in playing down the data collected by the Sachar Committee regarding backwardness of Pasmanda castes in every walk of life as ‘old’. The truth is that this data was not even 4 year old when it was referred to by the WBCBC and the State government. Compare the oldness of this data with the minimum of 10 year period stipulated by Section 11 of the 1993 Act for periodical review of data and much older data used to give effect to the recommendations of the Mandal Commission in 1992. Even population data is collected after a gap of 10 years which is used to devise policy and legislative measures in the intervening period. However, such details hardly bother the Calcutta High Caste Court. The same spirit animates the CHCC rejection of Sub-classification of the OBC list into ‘More Backward’ and ‘Backward’ categories by the State on the basis of a report by the Cultural Research Institute of the Department of Anthropology of the University of Calcutta specializing in the subject. This is when Indra Sawhney judgment had expressly held that so long as such a Sub-classification is reasonably done, the Court may not intervene.[xi] Even the WBCBC’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 Court. The Hon’ble CHCC discovered such a power with the WBCBC in this case, told the WBCBC that they had the power they just didn’t know they had it, exercised that power itself in the same case to condemn all 77 castes without proper notice from Paras 111 to 135.

            However, the judgment takes an incoherent turn in Para 130 and 131 where WBCBC is shown to claim that it did not have power in the matter of Sub-classification but the Court asserts that WBCBC was in fact consulted during this process! What indeed is the bone of contention here between the Court, Commission, Petitioner and the State? And why should the backward castes suffer because the Court fails to determine why is it hearing the case or if there is some procedural confusion among State institutions? Further, the epistemic judicial violence becomes most palpable when in Para 126 the court itself acknowledges that a number of muslim castes identified as backward by the Mandal Commission in 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 didn’t intervene and when the State finally woke up to correct that 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!

Incoherently Going Beyond the Case Remit

Para 136 to 146 are dedicated to make light of the presumption of constitutionality of a statute in order to invalidate certain parts of the 2012 Act. This is when the petitioners had not even argued that the State legislature did not have the competence to enact the 2012 Act. Yet, the Hon’ble 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. This is a very standard statutory method of defining a subject matter for the purpose of subjecting it to legislative regulation. But the court, on its own motion, imagines the possibility of exclusion of the role of the Commission in this process and reads it down calling it fraudulent exercise of the legislative power under Article 16(4) just because Indra Sawhney judgment envisages a Commission to decide complaints of over 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. If this kind of ‘mere possibility of abuse of power’ becomes the standard of judicial review, all legislative and executive action will come to a naught. No wonder that all the judgments that the Court cites from Para 165 to Para 171 do not even remotely resemble the issue at hand. In Para 173, the Court curiously seeks to elevate the 1993 Act on 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 Hon’ble CHCC reaches its peak in Paras 178 to 195 whereby it strikes down the second part of Section 2(h) of the 2012 Act. In these Paras, the Court begins by acknowledging that the State executive has full power to make provision for reservation and the State legislature need not make any law to that effect as settled by Indra Sawhney judgment. But it gets offended by the fact that Section 2(h) of 2012 Act duly incorporates this power in its effort to streamline the process of declaring certain castes as OBC. The court calls it 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 which the executive already possessess in full? This is a finest example of mind bending legal reasoning by the CHCC. In its delirium, the Court in Para 180 asserts that such a law should have factored in Article 213 of the Constitution which relates to the power of Governor to promulgate Ordinances during recess of Legislature. How come, what for? Para 185 makes it clear. In this Para, the Court perceives 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. The Court actually goes on to cite judgments on 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.

Mind Bending Legal Reasoning

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 second part 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, 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 making 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 WBCBC. The proviso to section 5(a) too, which envisages the State executive fixing the percentage of OBC reservation, is read down in 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. Mind you, not a single provision of the the original 1993 Act was invalidated rather it was glorified over the 2012 Act. How then the Executive Orders that were issued under the 1993 Act before the passage of the 2012 Act could be nullified? In a freak of reasoning, the Hon’ble CHCC first reads Section 19 of the 2012 Act meant to save Orders issued under the 1993 Act as subsuming those Orders in the former Act. Now as the Executive stands dis-empowered through judicial interpretation to issue any such Order under the 2012 Act, the Executive Orders validly issued under still valid 1993 Act too stand nullified. Much of this operation is done by inventing the possibility of non-consultation with the WBCBC. The extent to which this entire operation is botched up becomes glaring from the fact that the WBCBC was actually consulted at every stage of the classification of those 77 castes as OBC! The Hon’ble CHCC seems to leave only one option for the State Executive: it should reject the recommendations of the WBCBC when it is positive for inclusion and accept it when it is negative. The flip-flop by the Court in Paras 260 to 265 is a good testimony to this approach. Use of phrases like Procedural Impropriety, Colorable Exercise of Power, Manifest Arbitrariness in Paras 309 to 319 is for sheer decorative purposes rather than any legal relevance.

            Hon’ble CHCC feels that the recommendation for inclusion of 77 castes in the OBC list by the WBCBC was done in haste even though such a recommendation was due for decades. If a decision which is delayed by decades is eventually taken based on the recommendation of the Commission which the Court insists is the only constitutional procedure to decide, it must still face the Court veto. Why so? Para 269 makes it clear that the only reason why CHCC performed all that gymnastics is because it perceived these 77 castes as muslim not as backward castes. For this purpose the NCBC is treated as a National Conversion Commission and WBCBC too is sought to be converted as such in Para 303-306. In the same vein, from Para 320 to 332 the Court strenuously takes up the question whether religion can be the sole basis for the recommendation of the Commission under Article 16 (4) when neither the Commission nor the Legislature/Executive make any such assertion in their entire history. Further, the Court seeks to deligitimize the WBCBC’s positive recommendation for the inclusion of these castes in 2010 by linking it with then Chief Minister’s public announcement of a 10% reservation in government jobs for the muslim community and with 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, dis-empowered and marginalized social classes is routine. If such promises become 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 stronger social classes? In the last concluded general elections, both the ruling and the opposition alliance made repeated promises to Dalit, Pichda, Adivasi, Pasmanda classes. Does this mean that post election all laws and policies concerning these Bahujan classes can be judicially invalidated?

Conclusion

Summary of the reports of the WBCBC’s recommendation for the inclusion of the 77 castes in the OBC list prima facie shows that the it contains some of the most marginalized and historically excluded caste groups. To judicially exclude these castes from the OBC list on the basis of whimsical deficiencies discovered by hyper activists court in complete disregard to the established canons of judicial review is nothing short of a fraud on democracy and the constitution. This fraud becomes even more pronounced when repeated discovery of ‘deficiencies’ by the Higher Judiciary indicated in Para 280 could easily be overcome by the caste census but no Court has ever ordered it so far.

            This surely must turn our gaze on 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 male higher caste gentry.[xii] In the absence of proportionate representation of the marginalized lower castes, the Higher Judiciary becomes stunted as Higher Caste Judiciary.[xiii] 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 in order to nourish it with democratic values and sensibilities. This can only be done by placing the legal education of Dalit, Pichda, Ati- Pichda Adivasi, Pasmanda groups at the heart of Bahujan movement for social democracy. Bahujan lawyers as leaders of the Bar oriented towards social democracy can apply significant pressure to make the Bar representative of diverse social classes. Technically, this can be done by amendment to Articles 124 clause (2) and 217 clause (1) adding the following common proviso: “Provided that in making such appointments, reservation for the

Scheduled Castes, the Scheduled Tribes and Other Backward Classes in proportion to their share in population shall be ensured.” Social and political movements to carry out this constitutional amendment cannot be delayed anymore if the higher judiciary is to be rescued from the higher caste gentry and social democracy is to be realized as the highest constitutional ideal.

[i] Diversity Deficit in Indian Judiciary (Vidhi Mitra, 26 January 2022). <https://legalaiddnlu.wordpress.com/2022/01/26/diversity-deficit-in-indian-judiciary/> accessed 15 July 2025.

[ii] Ayaz Ahmad, ‘Role of Supreme Court in Arresting Social Democracy’ in Yogesh Pratap Singh and others (eds.), The Supreme Court and Indian Constitution (Wolter Kluwer Publications 2020).

[iii] Namit Saxena, ‘Disproportionate representation at the Supreme Court: A perspective based on Caste and Religion of judges’ (Bar and Benh, 23 May 2021) < https://www.barandbench.com/columns/disproportionate-representation-supreme-court-caste-and-religion-of-judges#:~:text=While%20Brahmins%20maintained%20the%20highest,the%20apex%20court%20till%20date> accessed 14 July 2025; Shyamlal Yadav, ‘Reservation candidates are under-represented in Govt’s upper rungs’ The Indian Express, (New Delhi 17 January 2019) < https://indianexpress.com/article/education/reservation-candidates-are-under-represented-in-govts-upper rungs-5540310/ > accessed 14 July 2025; ‘Who Tells Our Stories Matters’(Oxfam India Report, 2 August 2019) <https://www.oxfamindia.org/knowledgehub/workingpaper/who-tells-our-stories-matters-representation-marginalised-caste-groups-indian-newsrooms> accessed 14 July 2025.

[iv] WPO 60 of 2011.

[v] Khalid Anis Ansari, ‘India’s Scheduled Caste list must be religion-neutral. Muslims, Christians are also Dalit’ The Print (New Delhi, 28 August 2023) <https://theprint.in/opinion/indias-scheduled-caste-list-must-be-religion-neutral-muslims-christians-are-also-dalit/1734311/> accessed 15 July 2025.

[vi] Indra Sawhney vs Union of India And Ors. AIR1993 SC 477.

[vii] Jaishri Laxmanrao Patil vs The Chief Minister And Ors, AIRONLINE 2021 SC 240.

[viii] Ayaz Ahmad and Yogesh Pratap Singh, ‘Crumbling Social Justice and the Need for Representative Higher Judiciary’ (Roundtable India, 20 September 2019) <https://www.roundtableindia.co.in/crumbling-social-justice-and-the-need-for-representative-higher-judiciary/> accessed 14 July 2025.

[ix] Karl N. Llewellyn, ‘Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed’ (1950) 3 Vanderbilt Law Review 395; Mark V. Tushnet, ‘Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles’, (1983) 96 Harvard Law Review 781.

[x] Supreme Court Advocates-On-Record vs Union Of India 1993 (4) SCC 441.

[xi] Interestingly a seven judges bench of the Supreme Court in the State of Punjab & Ors. vs. Davinder Singh, Civil Appeal No. 2317 of 2011 on August 01, 2025 held it constitutionally permissible for the States to undertake Sub-classification on the basis of relevant data.

[xii] Apurva Vishwanath and Manoj C G ‘Last 5 years, 79% of new HC judges upper caste, SC and minority 2% each’, The Indian Express (New Delhi, 10 July 2023) <https://indianexpress.com/article/india/last-5-years-79-of-new-hc-judges-upper-caste-sc-and-minority-2-each-8371593/> accessed 14 July 2025.

[xiii] Namit Saxena (n 3).