Why in News?

In election season, India is debating fundamental constitutional questions around religion-based reservation.

What’s in Today’s Article?

• What are the Fundamental Constitutional Questions Around Religion-Based Reservation?
• The Concept of Equality and Equity
• Reservation and the Constitution of India
• The Observations of SC on Muslim Reservation
• How Indian States Dealt with Muslim Quota Question?

What are the Fundamental Constitutional Questions Around Religion-Based Reservation?

• Can a secular country like India have religion-based reservation?
• Have Muslims ever been given reservation by reducing the quota for Scheduled Castes (SCs), Scheduled Tribes (STs), or Other Backward Classes (OBCs)?
• Does reservation for SCs that is limited to only certain religious denominations amount to reservation based on religion?

The Concept of Equality and Equity:

• The Constitution of India moved away from equality (equal treatment for all) to equity, which ensures fairness and may require differential treatment or special measures for some groups.
• On the other hand, substantive equality is concerned with equality of outcomes. Affirmative action promotes this idea of substantive equality.
• As a result,
  • The Mandal Commission (1980), following the example set by several states, included a number of Muslim castes in the list of OBCs.
  • The Justice Rajinder Sachar Committee (2006) found that the Muslim community as a whole was almost as backward as SCs and STs, and more backward than non-Muslim OBCs.
  • The Justice Ranganath Misra Committee (2007) suggested 15% reservation for minorities, including 10% for Muslims.

Reservation and the Constitution of India:

• Article 15 (1) specifically prohibits the state from discriminating against citizens on grounds only of both religion and caste (along with sex, race, and place of birth).
• The first constitutional amendment inserted Article 15(4), which empowered the state to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs or STs.
• Article 16 (1) states that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
• Article 16 (2) specifically prohibits the state from discriminating against citizens on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, in respect of any employment or office under the State.
• Article 16(4) enables the state to make any provision for reservation in favour of any backward class of citizens which is not adequately represented in the services under the state.

The Observations of SC on Muslim Reservation:

• In M R Balaji (1962), the SC held that while castes among Hindus may be an important factor to take into account when assessing the social backwardness of certain groups or classes of citizens, it cannot be the only test in this regard.
  • Therefore, it is possible that in some states certain Muslims, Christians or Jains form socially backward groups.
• In the E P Royappa vs State Of Tamil Nadu (1973), the SC has held that equality is a dynamic concept and cannot be confined within traditional limits.
• After the SC’s judgement in State of Kerala vs N M Thomas (1975), reservation is considered not an exception to the equality, but as an extension of equality. The crucial word in Articles 15 and 16 is ‘only’ - which implies that -
  • If a religious, racial, or caste group constitutes a weaker section (under Article 46) or
  • Constitutes a backward class, it would be entitled to special provisions for its advancement.
  • For example, some Muslim castes were given reservation without reducing the quota for SCs, STs, and OBCs by creating a sub-quota within the OBCs.
• The SC in Indra Sawhney (1992) laid down that any social group, if found to be backward under the same criteria as others, will be entitled to be treated as a backward class.

How Indian States Dealt with Muslim Quota Question?

• Kerala: Muslims, who constituted 22% of the population, were included within the OBCs in 1952.
• Karnataka: In 1995, the State government implemented 4% Muslim reservation within the OBC quota. 36 Muslim castes which are part of the central list of OBCs were included in the quota.
• TN: The State government passed a law in 2007 that provided within the 30% OBC quota, a subcategory of Muslims with 3.5% reservation. This did not include upper-caste Muslims.
• Andhra Pradesh (undivided): In 2004, the State government provided 5% reservation, treating the entire community as backward.
  • The HC struck down the quota on the technical ground.
  • However, it held that reservations for Muslims or sections/ groups among them, in no manner militate against secularism, which is part of the basic structure of the constitution.
• Telangana: After the bifurcation of Andhra Pradesh in 2014, the Telangana government passed a law in 2017 proposing 12% reservation for OBC Muslims.
  • Since the proposal would take reservation beyond the 50% cap mandated by the SC (in 1992), it was referred to the central government for inclusion in the Ninth Schedule.
  • But the Centre did not bring the proposal to Parliament.