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Reservation for Minorities: Constitutional validity

By Kaneez Fathima,

AP government had issued GO MS 33 announcing 5% reservation for Muslims in Education and employment in the year 2004. Similarly central government had issued 4.5% reservation orders in December 2011. Since then people are arguing and opposing the reservations to minorities especially to Muslims. This was struck down by the High Court of AP two times earlier and recently the same court has also struck down the Central government’s decision of 4.5% reservation to Muslims in Education and employment. While delivering judgments, Judges do not apply their minds; they do not understand the spirit of Articles of the Indian Constitution and come to wrong conclusions. Chief Justice of High Court, Mr. Madan B. Lokur who is now posted as Supreme Court judge was one of the judges in the bench that struck down the reservation to minorities in education and employment. In one of the seminar, where he delivered lecture to the students, had said that, “Judgments should reflect the aspiration of society and that critical analysis of the order was required to ensure that they were better”. There is a need for himself and other Judges to think over his quote, whether the aspirations of the society is reflected in their judgments or not.

Various reasons have been expressed from time to time on the issue of reservation to Muslims by stating that constitution does not permit religion based reservation, it will bring social disparities and are harmful for the society etc. This judgment of Court will bring disastrous impact on Minorities including Muslims of this country especially in the educational institutions. The central government took the decision that it will approach Supreme Court on this issue and admitted Special Leave Petition. Even the Supreme Court refused to admit centre’s SLP and declined to stay the Andhra Pradesh High Court order or to issue any notices. The reason given by Supreme Court for refusing Special Leave Petition is that the centre has not submitted the relevant supporting documents based on which the 4.5 percent minority quota was carved out within the27% OBC quota.

Let us look back into the past times, on allotting reservation for OBCs. Immediately after the constitution came into effect, Madras Court gave the judgment that OBC reservation cannot continue that was in effect in Madras state. Serious debate took place all over the country. Even in Parliament a big discussion took place. Babasaheb Ambedkar stated that the judges of Madras Court did not understand the spirit of constitution and they are acting just as legal experts. He also said that Articles 14, 15 and 16 that give fundamental rights are not against the OBC reservation that is in practice in Madras and it is according to the constitution itself. Based on his argument, the first constitutional amendment was made for the OBC reservations. Presently AP High Court & Supreme Court gave the similar judgment on Minority reservation by saying it is against the constitution as the then Madras Court had given on OBC reservation. Balagopal had already hinted in the year 2007 itself that the High Court will strike off the Muslim reservation due to the opportunist politics of the government. Keeping in consideration the Judgments of HC in the years 2004 and 2005, the government should have taken appropriate steps by making law, instead of issuing GOs and ordinances for reservation to Muslims and other minorities.

Constitution has clearly given Fundamental rights to its citizens. Education and employment issues are also given under Fundamental rights to the citizens. According to article 13(2), 3(a) any law or practice that violates the Fundamental rights cannot come under constitution. According to Article 14 the citizens living in the geographical boundaries of the country are equal before law. They are protected by law. That means people of all religions have equal value before law and justice. The Chief Architect of Indian Constitution, Dr. Ambedkar who understood the true spirit of this Article argued that right to education, employment right, right to life, property, and right to representation should be put under Fundamental rights. Article 13 says that the Fundamental rights cannot be changed in the past, present and future. This means that the state does not have the authority to remove these rights. Therefore, Fundamental rights are the basic structure of the constitution. Even the Parliament does not have the right to change this structure. Article 15 has given the right to representation to all the citizens. According to the Article 15(1), The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article according to the Article 15(4), (5) nothing in this article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens. According to Article 16(1), (2), (4) there should be equality for all citizens relating to employment and should not be discriminated on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them, the state should make provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Constitution very clearly stated the word citizen. Muslims and other minorities are the citizens of this country; therefore they should be given all the Fundamental rights that have been guaranteed by the constitution. But judiciary is acting against the constitution and opposing reservation to minorities in education and employment. The AP state High Court’s decision not to give reservation to minorities under Article 15, 16 is very shocking. Under Fundamental rights, in each and every article the first word very clearly used is religion followed by race, caste; but the judiciary states that religious based reservation is unconstitutional. This is the reason that the judiciary has struck down the minority reservation G.O and ordinance four times. Is this not the distortion of constitution by the judiciary?

When the Constitution says that special provisions can be made for the development of those groups who are socially, economically and educationally backward and they cannot be discriminated based on their religion; Muslims are economically and socially backward which has been time and again reported by commissions and committees, taking this into consideration, why is the judiciary not giving instructions to the central and state governments to allot separate reservations to Muslims? Here the question arises is, does not the judiciary consider Muslims as the citizens of this country?

Recognizing Muslims as backward group is technical problem. A general argument exists that reservations cannot exceed 50%. There are various views of the Supreme Court judges in the past 50 years on this issue. Some judge had said reservation can be given according to the backwardness; there is no need of ceiling. Some other judge said reservation cannot exceed 50% under any circumstances. But in the Mandal Commission case, Justice Jeevan Reddy’s judgment on behalf of the majority is very crucial; it says, ‘it is a general principle that reservations for the backward classes should not cross 50%. There can be relaxation for it in special matters. Not only this, apart from the reservation to backward classes, giving reservations based on other reasons, the 50% ceiling does not apply. Local reservation, 33.3% reservation to women, 3% reservation to handicapped, NCC quota, sports quota etc are outside this reservation. There is 70-80% reservation in many states. Parliament should decide the limit of reservation. Parliament is the supreme body to decide and judiciary has to agree to its decision.

Supreme Court has said number of times in the past that those castes who are backward socially and educationally can be identified as backward groups and can be given reservations. The upper castes questioned this when reservations were given to BCs. Today the argument on religion based reservation is similar to the earlier arguments when caste based reservation was given for BCs. At that time Supreme Court had clearly stated that any caste which is identified as backward group based on their social and educational backwardness can be considered as backward group and allotting reservation on this basis is not at all caste based reservation. The same principle can be applied in the present conditions as well. Supreme Court had further clarified that any group which is socially and educationally backward can be given reservations and that group can be from any caste, any community, any region or any language and this does not mean giving reservation on the basis of caste, community, language or religion. In the context of this it had also said that, “if any state government identifies backwardness even among Muslims, then reservations can be given”.

There are various groups among the Muslims. They are considered as various castes by the BC commission. There are no castes in Islam. The backwardness and poverty among the Laddaf, Bohra etc, the same poverty and backwardness can be seen among the Pathan, Syed also, which are not in the BC Commission list. Therefore, all the Muslims should be seen under one category. The government should stop bringing differences among the Muslims by creating castes. Those who are in forefront in education, employment and politically should be considered as creamy layer and reservation should be given to the needy Muslims only and thus justice can be done to the community. The method followed in giving reservation to BCs can be followed to the Muslims as well by exempting creamy layer from the reservations.

BCs are turning as opponents to Muslims due to allotting reservation from the BC quota to Muslims and other minorities. This is taken as an opportunity by the Hindutva forces to spread religious hatred and violence. If at all the government is serious in giving reservation to Muslims then it should remove the ceiling of 50% reservation. Muslims and other minorities should be allotted reservations based on their population. Giving reservation from the 27% of OBC reservations is nothing but decreasing quota and rights of Muslims and other minorities, according to the percentage of their population. Reservation should be given to minorities in education and employment based on the 2011 census.

When the Mayawati government had decided to give 10% reservation to upper castes, BJP and Congress agreed then but they are opposing reservation to Muslims. Even the BCs did not oppose reservation to upper castes but are in forefront to oppose Muslim reservation. They are opposing and arguing in the courts along with Hindutva forces. Is giving reservation to upper castes not based on religion? Why has the court not said this? Does the upper caste not belong to Hindu religion? No one from SC, ST or BC came forward to question reservations to upper caste and did not even move to the courts.

Here, there can be one more argument for those who are opposing reservation to Minorities saying it cannot be given based on religion. In this context it can be argued that if reservation to minorities cannot be given because it will be based on religion then are the reservations to SCs, STs, BCs not based on religion? Are these people not considered as Hindus? Then, reservation to these people is also based on religion only.

But, the constitution very clearly said that reservation can be given based on social and educational backwardness for the betterment and development of the citizens irrespective of religion, caste, class etc. Therefore, reservation to Muslims and other Minorities should also be not opposed by anyone including Judiciary. For this purpose, constitutional amendment should be brought and reservation to Minorities should be given based on their percentage of population according to recent census.

If at all the central government is serious on providing reservations to Muslims and other minorities, then it should make provision through constitutional amendment to provide reservation to minorities as it had done for BCs in the past. Without doing this, the government is trying to place Muslims and other minorities in dark by issuing G.Os, Ordinances. If the government is trying to bring differences between Muslims and BCs, by doing such act, then it will be doing a blunder mistake.

(The author is Joint Secretary, Civil Liberties Monitoring Committee. India)