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Polity & Governance
Mahesh

08/05/24 06:17 AM IST

Religion-based reservations in India

In News
  • In election season, India is debating fundamental constitutional questions around reservation.
Religion based reservations
  • The Constitution of India moved away from equality, which refers to equal treatment for all, to equity, which ensures fairness and may require differential treatment or special measures for some groups.
  • The Supreme Court has held that equality is a dynamic concept with many aspects and dimensions, and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits.
  • Formal equality is concerned with equality of treatment — treating everyone the same, regardless of outcomes — which can at times lead to serious inequalities for historically disadvantaged groups.
  • Substantive equality, on the other hand, is concerned with equality of outcomes. Affirmative action promotes this idea of substantive equality.
  • The Constitution of 1949 dropped the word ‘minorities’ from Article 296 of the draft constitution (Article 335 of the present Constitution), but included Article 16(4) that enabled 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 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 Scheduled Castes and the Scheduled Tribes”.
  • Article 15 specifically prohibits the state from discriminating against citizens on grounds only of both religion and caste (along with sex, race, and place of birth).
  • After the Supreme Court’s judgment in State of Kerala vs N M Thomas (1975), reservation is considered not an exception to the equality/ non-discrimination clauses of Articles 15(1) and 16(1), 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.
  • Some Muslim castes were given reservation not because they were Muslims, but because these castes were included within the backward class, and reservation was given without reducing the quota for SCs, STs, and OBCs by creating a sub-quota within the OBCs.
  • The Mandal Commission, following the example set by several states, included a number of Muslim castes in the list of OBCs.
  • The Supreme Court in Indra Sawhney (1992) laid down that any social group, whatever its mark of identity, if found to be backward under the same criteria as others, will be entitled to be treated as a backward class.
Kerala: Muslim sub-quota
  • Religion-based reservation was first introduced in 1936 in Travancore-Cochin state.
  • In 1952, this was replaced by communal reservation. Muslims, who constituted 22% of the population, were included within the OBCs.
  • After the state of Kerala was formed in 1956, all Muslims were included in one of eight sub-quota categories, and a sub-quota of 10% (now 12%) was created within the OBC quota.
  • Unlike the faulty report of the Mandal Commission which concluded, on the pattern of Hindus, that only 52% Muslims were OBCs, in Kerala and Karnataka, from the times of the Hindu maharajas, Muslims were seen as having been drawn overwhelmingly from the “untouchable” and other “low” castes, and were thus included among the backward classes.
Tamil Nadu: Backward Muslims
  • The government of M Karunanidhi passed a law in 2007 based on the recommendations of the Second Backward Classes Commission headed by J A Ambasankar (1985), that provided within the 30% OBC quota, a sub-category of Muslims with 3.5% reservation.
  • This did not include upper-caste Muslims. The Act gave reservation to some Christian castes, but this provision was subsequently removed on the demand of Christians themselves.
Sachar, Misra panels
  • 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.
  • Based on these two reports, the UPA government in 2012 issued an executive order providing 4.5% reservation of minorities — not just Muslims — within the existing OBC quota of 27%.
  • Since the order was issued only a few days before the Assembly elections in UP, Uttarakhand, Punjab, Goa, and Manipur, the Election Commission asked the government not to implement it.
  • The AP High Court quashed the order, and the Supreme Court refused to stay the HC’s order.
  • Article 341 of the Constitution and the 1950 Presidential Order state that only Hindus are entitled to inclusion within SCs.
  • However, Sikhs were included within SCs in 1956, and Buddhists in 1990. Muslims and Christians remain excluded. It could be argued that this too, is ‘religion-based’ reservation.
Source- Indian Express

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