The case of reservation for Muslims within the Other Backward Classes quota has a strong constitutional basis
By Pavan Kasturi, Anusha Karanam
Hyderabad: Union Home Minister Amit Shah recently said he would scrap the unconstitutional reservations for Muslims within the OBC category in Telangana if they were elected to power and pledged to provide Other Backward Classes (OBCs) with the rightful opportunities they deserve.
Last month, the Karnataka government removed the 4% OBC quota for Muslims and moved them to the EWS (Economically Weaker Section) category. The matter reached the Supreme Court in L Ghulam Rasool v State of Karnataka where the court commented on the move as “highly shaky & flawed”. Amidst the current controversy, it is pertinent to debunk myths by delving into the constitutionality of the reservations granted to non-Hindu faiths within the OBC category.
Misconceptions
There are several misconceptions such as reservations granted to the Muslim community are founded on religious identity and run afoul of the Constitution’s principles, the Andhra Pradesh High Court in AP BC Welfare Association v. State of AP has struck down a 5% reservation for Muslims brought in 2005 under OBC and there can be no sub-classification that is allowed to a particular class in the reservation scheme.
Furthermore, the Constitutional Assembly was against reservations based on religious affiliation and religion cannot be the primary identifier in policymaking. Finally, there is no caste hierarchy in other religions, especially in Muslims, and there is no proper rationale for identifying them in OBCs as done for certain castes in Hindus.
Debunking Myths
During the Constituent Assembly debates, the term ‘Backward Classes’ was subject to multiple interpretations. Two primary usages emerged: the first as an all-encompassing group necessitating preferential treatment, inclusive of untouchables and tribes; the second as a stratum above untouchables, yet still underprivileged, with the term ‘OBC’ specifically designated for this purpose. In either usage, this idea is for the Hindu social structure.
However, one must understand the distinction between the Constituent Assembly’s advisory committee chaired by SC Mookerjee opposing communal reservation of Parliament/Assembly seats, and the Constituent Assembly discussions on whether minorities would be included in Backward Classes for affirmative action. In the latter, it is unequivocal that minorities were included in OBC as Dr Ambedkar frequently in his speeches used ‘communities’ and not caste, indicating Backward Class includes communities and not merely a set of castes in OBC.
After the enactment of the Constitution, reports of both the Backward Class commissions [Kaka Kalelkar (1955) and Mandal (1980)] included non-Hindu communities within the purview of Backward Classes, pointing that other factors such as economic and educational factors should also be taken into consideration other than only caste in identifying OBC.
Further, this view has been fortified in many precedents by the SC such as MR Balaji v. State of Mysore (1962). When Backward Classes were identified solely based on caste, this was struck down holding caste was not a sole determinative factor for backwardness. Later a 9-judge Indra Sawhney’s judgment (1992) modified this position stating caste can be a dominant factor in identifying Backward Classes, and held that when it comes to non-Hindus, identifying backwardness should be based on traditional occupations.
Also, there is a difference between the reservations in Schedule Caste and Schedule Tribe which are religiously not neutral as it was meant to rectify historical injustices such as untouchability and humiliation of Dalits in the Hindu society. But when it comes to OBC, it is religiously neutral and Backward Classes in non-Hindus can avail reservation in this. However, considering even if this is not the case, many sociological scholars have identified that there is social stratification even in Islam (similar to Varna system). Based on such classification, they can be legitimately included in the OBC category.
Now when it comes to the AP High Court striking down 5% Muslim reservations in OBC, there were two reasons, one, the additional quota was above the 50% ceiling limit set in the Mandal Commission case, and two, the State government did not provide any quantifiable data to show that Muslims were inadequately represented and such additional reservation was required. This data is essential to create such benefits, as we can see the same principle was followed in the Maratha reservation case (2021) and BK Pavitra-I (Karnataka reservation Case 2017). Later this mistake was rectified by the AP government by appointing the Krishnan Committee, which provided data and recommended 4% reservations for certain Muslim communities.
Politically Profitable
It is clear that Muslim community reservation in OBC has a strong constitutional basis and hopefully the SC will strike down the Karnataka government’s legally dubious, politically profitable move of removing Muslim communities from the Backward Classes. But to elevate the status of Muslims, sub-classification can be a tool that must be used by categorising Backward and More Backward Classes among Muslims with sound statistical evidence. Such classification has been permitted by the SC in the Davinder Singh case (2021).
One can point to the issue that several States in India have crossed the 50% ceiling limit (Tamil Nadu, Haryana, etc) then why should Telangana be deprived of such a move which benefits its Muslim population? But it is also important to note that the SC steadfastly held that the provisions of reservation cannot be vigorously pursued to destroy the very concept of equality, and hence this 50% ceiling limit is a constitutional Lakshman Rekha. But this was continuously criticised by many States that mathematical precision when it comes to reservation is antithetical to ground realities.
The recent EWS judgement (Janhit Abhiyan v Union of India) has again pointed out that conducting a caste census may be the sole viable approach to ascertain the rationale for the 50% quota limit. As of now, with the inclusion of EWS reservation of 10%, the quota level is set at 60%.
A viable remedy that doesn’t involve augmenting the existing quota would be to alleviate the burgeoning congestion in the 27% OBC quota by ascertaining the socially and economically advanced classes and castes in OBC and relocating them to the General Category. In light of the recent introduction of the EWS, which has been censured as a quota for a select few (as the General Category population is considered less than compared to the quota allotted), if these newly relocated classes and castes necessitate affirmative action, they could avail themselves of EWS benefits, hence furnishing a safety net. This would ensure that the genuine beneficiaries of the reservation policy can fully realise its benefits.