Professor Sridhar of NALSAR University takes a look at the pronouncement of the Hon’ble Supreme Court of India on the Issue of subquota for Muslims and explains how and why the Court has reached the conclusion of it being unconstitutional
The Supreme Court asked the government on the issue of sub quota for Muslims a simple question : 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 Jayate has demonstrated as to how vicious 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 as ‘backward’ as a class. Hence reservation for them in employment and education wasconsidered 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 sub quota 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.
While Constitution mandates affirmative action for the upliftment of the 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 vote bank and wanted religion to be the basis for providing ‘state benefits’ which is totally unacceptable 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.
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 IndraSawhney 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 thatMuslims are more backward than the Other Backward Classes and thus clubbed all minority backward classes into one subgroup without any material basis, solely based on religious identification.
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.
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 IndraSawhney case that any revision in the backward class list should be preceded by consultation with Backward Class Commission was provided with statutory recognition by NationalCommission for Backward Classes Act, 1993. But It is violated.
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 its recommendation cannot pass the constitutional standard since OBC reservation was given not on the basis of population, but on the extent of backwardness.
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 has time and again been showing 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 for political mileage 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 enable them to progress but to politically exploit their ‘backwardness’. This quota is not for Muslims but for their votes.
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