Kerala High Court, in its judgment dated September 8, has directed the state and central governments to expedite the submission of the complete data on the socio-economic survey which was conducted in 2011. This direction was given in the light of two petitions which were heard together by a bench headed by Chief Justice S Manikumar and comprising Justice Shaji Chaly, and a common judgment was passed. Both petitions were concerned with revision of the list of backward communities to ensure exclusion of communities that no longer qualify as such and for inclusion of all such communities that have been deprived of the benefits of reservation for backward communities.
Background
The petitioner, Manavaikyavedhi (Writ Petition 35220/2017) had petitioned before Kerala State Commission for Backward Classes for including certain castes/class in the list of other backward community but it held that it cannot go forward with the hearing since there is no socio-economic and caste survey available with them. But the petitioner contended that the Commission should make recommendations to the government for conducting a socio-economic caste survey.
The other petitioner in the other writ petition (No. 19937/2019), Minority Indians Planning And Vigilance Commission Trust (MIPVCT) contended that though Section 11 of the Act, 1993 mandates periodic revision of reservation lists by the State Government with a view to exclude those classes, who have ceased to become backward classes, or for including in such lists, new backward classes, even after 61 years of statutory reservation, no such revision has been conducted. It further contended that due to this non revision, the Muslim Community, SC/ST and 70 other backward classes have been grossly under represented in the Kerala Public Services.
MIPVCT submitted that the Constitutional rights afforded to the backward class communities, especially the Muslim Community as well as SC/ST communities, 73 other backward class communities in Kerala are completely sabotaged by the respondent-State by its willful disobedience of the direction of the Hon’ble Apex Court (in Indra Sawhney v. Union of India [AIR 1993 SC 477]).
The petitioners further submitted that under Section 5 of the Kerala State Backward Classes Reservation of Appointments Act, 1995, the legislature has added additional function upon the Kerala State Commission for Backward Classes, to evaluate from time-to-time the degree of backwardness of the backward classes and submit periodical reports, which has not been complied with.
The data wise submissions made suggest that OBCs comprise 8.2% of the population in the state but they have only 5.8% government jobs and the Muslim population is 26.9% and their share in Government service is only 11.4%. Justice Narendran Commission report of 2000 had mentioned that the Muslim Community and SC/ST community are lagging behind and there is under representation of more than 7890 posts in 2000 itself.
Respondents’ submissions
The respondents in both petitions include Union of India, state of Kerala, Kerala State Commission For Backward Classes as well as the Census Commissioner. It was submitted by the Commission that the central government conducted a caste survey in 2011 but the data has not been published and hence the state government is not in possession of the same and neither is the Commission.
The Deputy Director of Census Operations, Thiruvananthapuram, submitted that “The caste wise population enumeration, other than the Scheduled Castes (SCs) and the Scheduled Tribes (STs), in census has been discontinued as a matter of policy after independence.” However, as per the constitutional requirement, the demographic and socio- economic data pertaining to SCs and STs are made available separately through census. In 2011, the central government decided to conduct Socio Economic and Caste Census-2011, a combined exercise to enumerate castes along with other socio-economic parameters.
The court’s observations
The court took into account the submissions made by the state respondents that numerous requests for inclusion of new communities in the lists were pending before the Commission, for want of a database relating to such communities. The Commission even sent several communications to the State government for revision of the list but no serious action was thus taken.
Further, after the 2011 socio-economic caste survey was conducted, the Commission sought the data from concerned authorities but the onus was ultimately put on the Central government.
The court inferred, from the various communications submitted before the court that the report of the socio economic survey was being protracted by the authorities concerned, in spite of the earnest efforts made by the Commission. The court commented on the slow approach of the state government and stated, “In our considered opinion, there is no justification for the State Government to sleep over the matter of considerable importance, representation in Government services, by providing reservation”.
The court concluded that unless and until a report is furnished to the Commission in respect to the socio-economic survey, the Commission may not be able to identify socially and educationally backward classes and eventually advise the government for reservation in public services.
The court’s findings
The court refrained from issuing directions to the Commission to proceed with its task of identifying backward classes in absence of socio-economic data.
“However, the Union and the State Governments are directed to take necessary steps for finalisation of the report of socio-economic study taking into account all parameters required for identification of socially and educationally backward classes within the State of Kerala, at the earliest, and submit a report to the 3rd respondent Commission”
The court then directed the Commission and the central government to take all earnest endeavour to finalise the evaluation and submit recommendations to the State Government.
The court further held that, “without taking evidence and identifying the factual circumstances by a fact-finding authority, the relief sought for, with respect to percentage wise appointment, in the public services, cannot be undertaken by this Court.”
The court wished to remind the state government that it is duty bound, as per Section 11 of Act, 1993 for periodical revision of list, at the expiration of ten years of coming into force of the Act and every succeeding period of ten years as well. Further, it also mentioned that this provision is a corollary of Articles 15 and 16 read with Article 340 of the Constitution and hence the state government is duty bound to discharge its obligations.
The complete judgment may be read here.
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