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Constitution & Muslims Quota

Constitution & Muslims Quota
Highlights

Reservations based solely on religion have faced judicial resistance.  However, certain groups professing Islam as a religion but classified as backward castes are enjoying reservations in many states. This apparently seems to be contradictory. 

Muslims as a group are entitled to affirmative action/social reservations within the Constitutional dispensation, provided they are identified as socially and educationally backward class for the purposes of Article 15(4) and backward class of citizens under Article 16(4). But, Muslims cannot be provided reservations based on religion alone without any such identification accepted by the law

Reservations based solely on religion have faced judicial resistance. However, certain groups professing Islam as a religion but classified as backward castes are enjoying reservations in many states. This apparently seems to be contradictory.

But, the fact is that religion cannot be the basis for according reservations. However, religion cannot also be the ground for exclusion from the constitutionally sanctioned protective discrimination and affirmative action in the form of reservations.

The primary objection to according reservations for Muslims is that the caste system is the practice confined to Hindu religion. Even some of the oppressed sections convert to other religions to come out of the clutches of caste system. But, caste in India extends beyond religious boundaries.

As observed by Justice B Sudershan Reddy in T Muralidhar Rao v State of Andhra Pradesh (2010), “Non-Hindu religions like Islam, Christianity and Sikh do not recognise caste as such, but the existence of caste-like social stratification among the Muslims is well-recognised that in spite of egalitarian philosophy of Islam, which opposes all kinds of discriminations, almost all types of caste groups have emerged in the Muslims.

The Muslims have developed different caste-groups at different places, but they call themselves as Jamat or Biradari and do not use the term Jat or caste e.g. Nadaf or Mansoori Jamat or Biradari, but in actual practice, they possess practically all the traits of caste structure such as endogamy, stratification, occupational, monopoly, dress-code and their own different Mosques.”

This does not justify the argument that Muslims as a whole are eligible for reservations. The courts have only upheld reservation for identified backward groups among Muslims under the OBC category. Those who oppose reservations for Muslims on the ground that Islam does not recognise the caste system have to realise that Supreme Court repeatedly held that caste is not the sole criterion for granting reservations.

The apex court in Indira Sawhney's case while referring to the speeches of Dr B R Ambedkar in the Constituent Assembly noted that throughout his speech in the Constituent Assembly, he was using the word "communities" (and not 'castes') which expression includes not only the castes among the Hindus but several other groups.

The word "community" is clearly wider than "caste" and "backward communities" mean not only the castes – wherever they may be found – but also other groups, classes and sections among the populace.

Supreme Court noted in M R Balaji v. State of Mysore that: "Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens ...... though the caste of the group of citizens may be relevant, its importance should not be exaggerated.

If the classification of Backward Classes of Citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the caste themselves. ... Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense known to Hindu society.

How is one going to decide whether Muslims, Christians or Jains or even Lingayats are socially backward or not? The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion of these groups in to from the operation of Article 15(4). It is not unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward.

That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is in the ultimate analysis the result of poverty to a very large extent... It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens."

The apex court in Chitralekha v. State of Mysore observed that the identification or classification of Backward Classes on the basis of occupation-cum-income, without reference to caste, is not bad and does not offend Article 15(4).

The basic premise here is that if fishermen or a washer man or a barber goes to temple, he or she enjoys reservations. But, if they go to a Masjid or a mosque, how can they be denied reservations. In case they are denied reservations only on the basis of religion, it negates the concept of religious freedom guaranteed by secular Indian Constitution.

In Sanjeet Shukla v State of Mahrashtra (2015) the Bombay High Court has permitted 5 percent quotas in Maharashtra state owned or aided higher education for 50 Muslim sub-castes on the grounds that data shows that they are educationally under represented.

The Andhra Pradesh High Court in T Muralidhar Rao v State of Andhra Pradesh (2010) held “Reservations for Muslims or sections/groups among them, in no manner militate against secularism, which is a part of the basic structure of the constitution. The concept of secularism is based on a benign neutrality to benefit all including religious groups and it seeks to advance "good" for all including religious groups.”

Articles 14, 15 and 16 enjoin upon the State to treat its entire people equally irrespective of their religion, faith or belief. The State while discharging its constitutional obligation cannot make any distinction between one group of citizens and other on the ground of religion, faith or belief.

The religion, faith or belief of a person or group of persons is totally immaterial so far as the State action is concerned. The State cannot exclude from its consideration the demands, entitlements of any constitutional claimants on the ground of religion, faith or belief. Therefore Muslims categorised as backward cannot be denied reservation benefits just because they are Muslims.

But, extending reservations for Muslims as a whole is unconstitutional. The Andhra Pradesh High Court in T Muralidhar Rao itself held, “…Whether a group, caste or class is entitled to the benefit of affirmative action does not depend upon religion, faith or worship.”

The founding fathers of Indian Constitution were not in favour of religion-based reservation as colonial India had a bitter experience with religious segregation of population. The Separate Electorates for Muslims were a precursor to the partition of India.

Repeating the same mistake by providing reservations for Muslims as a whole tantamounts to religion-based quota that can prove to be socially perilous due to competitive communal mobilisation. This would even endanger the interests of minorities, too.

This is not to dismiss the fact that Muslims as a whole are under-represented in government services, especially at the higher level and have relatively worse socio-economic indices.

Muslims as a group are entitled to affirmative action/social reservations within the Constitutional dispensation, provided they are identified as socially and educationally backward class for the purposes of Article 15(4) and backward class of citizens under Article 16(4). But, Muslims cannot be provided reservations based on religion alone without any such identification accepted by the law.

While dwelling upon the manner in which socio-political questions like reservations have to be addressed, as Justice Sawant observed in Indra Sawhney's case: More often than not such issues are emotionally hyper charged and raise a storm of controversy in the society. Reason and rationalism become the first casualties, and sentiments run high.

While dealing with them we have to raise the issues above the contemporary dust and din, and examine them dispassionately, keeping in view, the long-term interests of the society as a whole.

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