Subquota for Muslims: Unconstitutional and Unscientific – Prof.Madabhusi Sridhar

The Supreme Court asked: Can you make classification on the basis of religion? This is the moot question that goes against the constitutionality of the reservations for ‘muslims’. Whether Muslims are backward or because some of them were nawabs, do they not deserve to be considered as backward is a question to be answered based on their proven economic status. Muslims do not have a social problem as the Scheduled Castes have in our caste-ridden society.  The TV reality show of Satyamev Jayathe has presented how proliferate and deep rooted the problem of untouchability is in the present day social structure of our country. These are the examples where one can categorise the whole members of the caste are ‘backward’ as a class and thus reservation for them in employment and education was considered reasonable classification and not class discrimination.

Is there any research or survey to show emphatically that each and every person among muslims is backward – socially, economically and educationally?

Second important question the Supreme Court sought reply from the government is ‘whether 4.5 per cent subquota within 27 per cent quota for OBCs has statutory support? An office memorandum dated December 22, 2011 was the instrument in fixing up the sub ‘quota’ in Andhra Pradesh.  The Supreme  Court bench has rightly declined to stay the Andhra Pradesh High Court’s order annulling the quota for Muslims noting that there was ambiguity in the calculation for carving out sub-quota within the 27 per cent OBC quota.

Politics and Litigation on Muslim Quota

While Constitution mandates affirmative action for uplift of backward classes, specifying it as a positive exception to fundamental right to equality, the Political Executive, which takes oath to act as per the Constitution, used it as a strategic tool to secure Muslim votebank and wanted religion to be the basis of providing ‘state benefits’ which is totally not acceptable in any secular republic.  Andhra Pradesh Government pioneered the politics of religious reservations and did not hesitate to do it frequently even after several rejections from judiciary.

The Kotla Vijayabhaskar Reddy Government had issued GO Ms 30 in August 1994, for inclusion of 14 castes/categories, including Muslims, in the list of Backward Classes. A three-member bench of the HC directed the state not to put it into effect till AP Backward Classes Commission submitted its report. For 10 years (1993-2003), the commission collected data, held its sittings and also conducted a socio-economic survey of Muslims and other castes but for reasons best known its then chairman Justice K S Puttuswamy, no report was submitted to the government. And, after the Congress regained power in 2004, Y S Rajasekhara Reddy government issued GO Ms 33, earmarking five per cent reservations for Muslims by designating them as a backward class. A division bench of the HC suspended the GO and referred the issue to a five-member bench. In September 2004, the court struck down the GO as unconstitutional and ultra vires on four counts: that the Commissionerate of Minorities Welfare acted hastily and the process of identifying and classifying Muslims as BC was vitiated since no proper investigation was done; mandatory consultation with AP Backward Classes Commission was not done; the government did not identify the creamy layer and it failed to justify why the overall reservations exceeded the 50% bench-mark provided by the Supreme Court.

The government then reconstitutedAPBCCommission which submitted its report recommending 5% quota for backward Muslims. The governor promulgated an ordinance in 2005 earmarking 5% reservations for Muslims by including the community in the BC ‘E’ category. The issue again landed up in court. The five-member bench struck down the ordinance in November 2005, mainly on the ground that religion-based reservations were unconstitutional.

The bench cited five grounds for quashing the quota. The BC Commission considered reservations for one community, while the claims for inclusion of other castes and communities were pending. Earlier, two commissions-K N Anantharaman Commission and N K Murlidhara Rao Commission-which looked into claims of castes and communities for inclusion among BCs refused to recognize Muslim community as a whole as backward. The BC Commission did not produce sufficient data and facts to justify its findings. The total reservations exceeded the 50% ceiling suggested by the Supreme Court. Lastly, the bench observed that “the government can provide reservations to Muslims who are backward through proper identification but cannot declare the entire Muslim community as backward.”

Thereafter AP government referred the limited question of reservations for Muslims to the BC Commission. P S Krishnan was appointed as advisor to assist the commission. Krishnan submitted his report. In 2007, the Commission recommended reservations for only the identified socially and educationally backward (SEBC) Muslim groups and scaled down the quota from five per cent to four per cent.

Responding to challenge to reservations to 15 SEBC groups of Muslims by an ordinance the seven-member bench of AP High Court rejected it in February 2010. The majority (5-2) judgement not only objected to ‘religion-based’ reservations even for groups of SEBC Muslims but also faulted the Krishnan Committee and BC Commission reports for deficient data and improper surveys.

The bench expressed concern over such reservations “potentially encouraging religious conversions.” Justice B Prakash Rao aired the minority view, holding that the bench was not called upon to adjudicate the list of SEBC Muslims but was only required to answer a legal reference. Justice DSR Varma also did not agree with the majority view.

As the issue was relentlessly pursued by government to appease minorities, it resulted in repeated judicial exercise wherein 25 judges heard the matters in five different batches of writ petitions in a span of 18 years. And the matter is now under consideration by the Supreme Court which refused to stay the operation of AP High Court’s judgment holding muslim quota as unconstitutional.

AP High Court has given the following reasons: 1. The Muslim quota violated the constitutional injunction that state action should not be based on religion alone. The SC in Indra Sawhney case did not prohibit any new inclusion into backward class group.  The AP, Tamil Nadu and other states have identified and included new backward classes for such reservations. There are various minority backward classes which already form part of these categories based on their backwardness.  There is no scientific data or research for the AP Government to identify that Muslims are more backward than the Other Backward Classes and thus clubbed all minority backward classes into one sub-group without any material basis, solely based on religious identification.

2. There was no legislative sanction. The 93rd Amendment to Constitution the Parliament introduced a new provision, Article 15 (5) which mandated that reservation for admission in educational institutions could be provided only by way of a “special provision, by law”. A quota assigned by Parliament for the Other Backward Classes as a group cannot be disturbed merely by an executive instruction. The proper course for the Central government would have been to amend the law providing quota for the backward classes. This would have ensured that it was duly debated in Parliament.

3. The creation of a sub-quota also violated a major procedural safeguard — failure to consult the National Backward Class Commission (NCBC). The direction of the Supreme Court in Indra Sawhney case that any revision in the backward class list should be preceded by consultation with Backward Class Commission was provided with statutory recognition by National Commission for Backward Classes Act, 1993. It is violated.

4. The Report of the National Commission for Religious and Linguistic Minorities (NCRLM), does not justify the creation of a sub-quota. The NCRLM recommended an 8.4 per cent quota for minorities out of the 27 per cent OBC quota in Central government employment on the ground that 8.4 per cent is the total population of minorities with reference to the OBC population. But it recommendation can not pass the constitutional standard since OBC reservation was given not on the basis of population, but on the extent of backwardness.

5. The Constitution in Article 16(4) mandates reservation for backward classes who are “inadequately represented in the services of the State”. How the Government does conclude that Muslims were not adequately represented?

Judiciary was time and again sh0wing the path as to how the affirmative action should have a scientific data base rather than narrow considerations. The motive is political banking on vote banks and basis is the ‘religion’.  It also shows that it is not a sincere attempt to uplift the really backward Muslims or for that matter any class of people, but just to wash off hands by prescribing a quota, kicking up thousands of unnecessary cases in already burdened courts of law.  With ‘creamy layer’ recognized as important component of reservations, the political executive has to go forward with the policy of eliminating backwardness and considering just economic status as basis and nothing else to provide reservations. After sixty years of ‘reservations’, if the state still talks about reservations one should have reservations about the hidden objectives behind these political ‘measures’. The political leaders know that judiciary will strike it down and to facilitate the same they leave loopholes. They are using Constitutional Provisions not only for violation but also for political publicity and in the process wasting resources and valuable time of courts. Though religion is apparent basis, the real reason for Muslim reservations is not to develop them but to politically exploit their ‘backwardness’. This quota is not for Muslims but for their votes.

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