Karnataka Muslim Reservation Based Solely on Religion Not Only Unconstitutional But Also Against Social Justice and Secularism, Karnataka Govt Tells SC

“The aim of reservation, as envisaged in the Constitution, is to promote social justice by providing affirmative action to those who have historically been marginalized and discriminated against in society. The same has been enshrined in Articles 14 to 16 of the Constitution of India...The backward classes have been referred to as a “collection of certain castes” by none less than Dr BR Ambedkar. The whole point being there were socially and educationally backward classes in society who have been historically deprived and discriminated against. The same cannot be equated with an entire religion.”

This affidavit was submitted by the state of Karnataka in response to a petition challenging their decision to move Muslims from the OBC category, under which they used to enjoy four per cent reservation in public employment and educational institutions, to the ten per cent reservation pool for the economically weaker sections (EWS) in the state, and equally redistribute the now freed-up seats to the Veerashaiva-Lingayats and Vokkaligas. The petition is currently being heard by a bench comprising Justices KM Joseph and BV Nagarathna.

At the outset, the state government questioned the maintainability of the petition on the ground that the petitioner did not first approach the Karnataka High Court, where a petition challenging the government orders (GO) passed in March was pending. Besides this, the government also disputed the locus standi of the petitioner, saying that they had “no locus to question the inclusion or grant of benefits to any other community more so those who were not conferred the benefits on the basis of religion”.

Notably, the Karnataka government has informed the Supreme Court of India that while a ‘conscious’ decision has been taken to discontinue the policy of including the entire Muslim community in the OBC category, groups within the community that were found to be ‘backward’, such as the Pinjaras, Ladafs, and Mansooris, continue to enjoy the benefits of reservation, as they did under the earlier regime. Not only this, but the affidavit also points out that the initial inclusion of Muslims in the category of ‘other backward classes’ as early as in 1979 was contrary to the recommendations of the first state backward class commission constituted in 1972 by then-chief minister D Devaraj Urs and headed by LG Havanur

The said inclusion has been continued subsequently “primarily on the ground of economic backwardness” even though the constitutional scheme at that stage did not contemplate reservations to economically weaker sections, the state government has argued.

The Karnataka government has sought to defend its action by relying on the report of the Mandal Commission or the Socially and Educationally Backward Classes Commission, established in 1979 by the Janata Party government under the prime ministership of Morarji Desai. “The Mandal Commission clearly found that religion could not be the sole basis for reservation,” the affidavit states. It further adds:

“The rationale behind the aforesaid report is that the entire religion or religious communities cannot be treated as a monolithic entity for the purposes of treservation. As such, there is no reservation given to the Muslim community on the basis of religion as a whole in the central list. Even throughout the country, except State of Kerala, there is no state that provides for reservation for the Muslim community as a whole. There are various communities from the Muslim religion that are included in the SEBC which also continues to be the case in Karnataka. As such, the same in itself shows that the reservation solely on the basis of religion is not the practice followed anywhere in the country except Kerala and in the State of Karnataka, till recently.”

The state government has argued that the practice of granting reservation to the entire Muslim community in toto is violative of Article 14 since such a classification has no rational basis and is arbitrary and unreasonable. “Even otherwise, it would lead to further deprivations of the backward classes or groups within the Muslim community as the forward classes or groups would be in a position to garner the benefits under the police,” the government has submitted. Furthermore, as per Articles 15 and 16, the state was duty-bound to not discriminate only on the basis of religion, the affidavit states. While several rights and safeguards have been conferred under Articles 25 to 30 for religious minorities, there is no provision mandating the state to provide reservations to people belonging to the minority communities only by virtue of their membership of these communities, the state government has further explained. Apart from this, it has also claimed that the earlier reservation policy was contrary to the principles of social justice, as well as secularism. The affidavit states:

“The concept of social justice aims to protect those who are deprived and discriminated against within the society. Including within the said ambit an entire religion would be an antithesis to the concept of social justice and the ethos of the Constitution. Furthermore, the Preamble itself states that India is secular, which has been understood as “a positive concept of equal treatment of all religions”. Viewed thus, reservation on the basis of a person belonging to a particular religion militates against secularism and is, therefore, unconstitutional.”

The affidavit further submits that not only was the government under a constitutional duty to exercise the power to classify a group as socially and educationally backward in accordance with the constitutional mandate and the law, but the grant of reservations in a state and redistribution was a purely executive function dependent on the ‘ground realities’. Besides this, the affidavit also states that the Muslim community “suffers no prejudice” as they can avail the benefit of EWS reservation which has been introduced by virtue of the 103^rd constitutional amendment which was upheld in November of last year by a constitution bench headed by former chief justice UU Lalit. Urging the top court to dismiss the petition, the Karnataka government has stated:

“The petitioners have sought to give a colour to the exercise in question which is completely baseless. The timing of the decision, etc are immaterial without the petitioners clearly demonstrating that the reservation on the basis of religion is constitutional and permissible. Merely because reservations have been provided in the past on the basis of religion, the same is no ground for continuing the same for perpetuity, more so when the same is on the basis of an unconstitutional principle.”

Background

Under the scanner is a government order by which the Bharatiya Janata Party-led Karnataka government sought to exclude Muslims from the Other Backward Classes category and scrap the four per cent reservation given to them under Category II(B). After moving Muslims under Category II(B) to the ten per cent reservation pool for Economically Weaker Sections (EWS), the Veerashaiva-Lingayat and Vokkaliga communities, previously included under categories III(A) and III(B), were granted an additional two percent of the newly available seats, increasing their total share. Ahead of the assembly elections, the ruling BJP government has also decided to provide internal reservation among 101 Scheduled Castes.

The contentious announcement to scrap the four per cent Muslim quota was made by the Karnataka government a day after a division bench of the Karnataka High Court vacated a January status quo order, by which it had directed the state government to not act on an interim report of the Karnataka State Commission for Backward Classes (KSCBC) with regard to the demand for inclusion of Panchamasali Lingayat sub-sect in Category II(A). This stay was lifted by the high court only after Solicitor-General Tushar Mehta assured the court that the new OBC sub-quotas would not disturb the existing reservation quota in the category.

Case Title

L Ghulam Rasool v. State of Karnataka & Ors. | Writ Petition (Civil) No. 435 of 2023