Denying OBC Reservation to Muslims Is Unconstitutional and Communal 

While the Bharatiya Janata Party (BJP) has been reaching out to Pasmanda (Backward) Muslims in North India to establish its secular credentials, in the southern state of Karnataka the very same BJP has removed socially and educationally backward Muslims from the Other Backward Classes (OBC) category of society and transferred them to the forward caste grouping of the Economically Weak Section (EWS). 

The Basavaraj Bommai-led BJP government’s policies, including the last official announcement about the revised reservation formula, has made the state one of the most communally polarised societies in India.

An allegedly pre-dated government order regarding the transfer of category was published two days after the announcement of the elections and the rationale  provided for this new reservation formula is blatantly communal, defying even the ‘neutral’ language of administration. 

Backward caste vs class

On March 25, Chief Minister Bommai, in a press conference to announce the government’s new reservation formula, declared that Muslims were removed from the Backward list because the secular Indian constitution does not provide for religion-based reservation. He added that a similar religion-based reservation provided by the Andhra Pradesh government had been struck down by the Andhra Pradesh high court. 

The following day, BJP leaders both in the state and at the Union government exhorted in chorus that this new formula realises the dream of Dr B.R. Ambedkar, since the architect of the Indian constitution was against religion-based reservation. Union home minister Amit Shah, on a visit to poll-bound Karnataka, declared in a rally in Bidar on March 27 that the Congress party’s policy of Muslim ‘appeasement’ has now been set right by the BJP. He also praised the Bommai government for practising social justice by distributing the reservation snatched from the Muslim  quota equally among the Lingayat and Vokkaliga communities.

Even the government order effecting the transfer of Muslims from the OBC category to EWS category rationalised this blatant communal ploy by stating:

“Whereas at the time 2B category was created and the members of Muslim Community were included/classified as Backward Classes for the purpose of reservation, there was neither any recommendation by any body, nor was there any empirical data nor any material for granting them the said status.”

However, in its justification of this blatantly communal policy, the BJP has served the nation with four untruths:

1. That the reservation hitherto enjoyed by the Muslims is religion-based and hence unconstitutional;
2. A similar Muslim reservation formula was struck down by the Andhra Pradesh high court since it was unconstitutional;
3. There was no empirical data or recommendation by any body when Muslims were provided reservation in the 2B category; and 
4. Dr Ambedkar was also against religion-based reservations.

At the core of these justifications is the argument that Muslims were given reservations on the basis of religion. Not only does this deny the historical conversion of people from Backward Hindu castes to Islam and Christianity, but every Backward Classes Commission report, except the 1975 Havanur Report in Karnataka and the first All India Backward Classes report of 1953, has recognised the social and educational backwardness of the Muslims and upheld the reservation for non-Hindu Backwards under the OBC category. 

Also read: Karnataka: Muslims Excluded But Jains, Christians Eligible for Backward Classes Quota

In fact, the reason that the letter C in the phrase OBC refers to ‘Classes’ and not ‘Castes’ was well enunciated in a debate of the Constituent Assembly that set down the Constitution of India. In the 1992 Indra Sawhney judgment that upheld the OBC reservation provided by the Mandal Commission, the nine judge constitutional bench referred to this debate in rationalising the reservation provided to non-Hindu backwards in other religions, saying: 

“It is significant to notice that throughout his speech in the Constituent Assembly, Dr Ambedkar was using the word ‘communities’ (and not ‘castes’) which expression includes not only the castes among the Hindus but several other groups. For example, Muslims as a whole were treated as a backward community in the princely State of Travancore besides several sections/denominations among the Christians. The word ‘community’ is clearly wider than ‘caste’ – and ‘backward communities’ meant not only the castes – wherever they may be found – but also other groups, classes and sections among the populace.”

Hence it is obvious that the makers of the constitution, including its architect Dr Ambedkar, did not construe reservation to backwards in other religions as ‘religion-based’ reservation but as a genuine social justice opportunity under the OBC category. 

Legal precedents

The Naganagowda Committee of 1960, the first ever official body constituted by the Government of Mysore to identify Backward classes in the state, also considered Muslims as socially and educationally backward communities like their counterparts in the Hindu hierarchy and included them under the OBC category eligible for reservation.

Based on this recommendation, the then government of Mysore provided reservation for the OBC classes, including Muslims. When this was challenged in the Supreme Court in the case of Balaji vs State of Mysore, the then Chief Justice of India P.B. Gajendragadkar had observed:

“Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, the test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or Jains or even Linguists are socially backward or not? The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion of these groups from the operation of Article 15(4). It is not unlikely that in some states some Muslims or Christians or Jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or class of citizens, it cannot be made the sole or the dominant test in that behalf.”

This judgment was also cited in the Indra Sawhney case of 1992 by the nine judge bench.

In 1977, the Devaraj Urs government in Karnataka announced a new reservation formula that included Muslims as part of the OBC category, even though the first Backward Classes Commission report had recommended separate reservations for Muslims, Christians and Lingayats since they do not fall in the ambit of social discrimination in Hindu society. When this was challenged in the Karnataka high court, the division bench unambiguously upheld the inclusion of Muslims under the OBC category with the following observation: 

“…So far as the Muslims are concerned, the commission was unwise in excluding them from the list of Backward Classes solely on the ground that they belong to a religious minority. The Commission has however found that the Muslims are socially and educationally backward and also do not have adequate representation in the service. The fact that they are a religious minority is no ground to exclude them from the list of backward classes. The government in our opinion was perfectly justified in listing the Muslims in the list of Backward classes.”

When this order was challenged in the Supreme Court in the case of Vasant Kumar Vs State of Karnataka in 1982, a constitutional bench of five judges including the then Chief Justice Y.V. Chandrachud, also made an observation in support of the inclusion of non-caste, non-Hindu  citizens in the OBC category: 

“The examination of the question in the background of the Indian social conditions shows that the expression ‘Backward Classes’ used in the Constitution referred only to those who were born in particular castes, or who belonged to particular races or tribes or religious minorities which were backward.”

In 2004, in the T. Muralidhar Rao Vs State of Andhra Pradesh and Others case regarding the inclusion of Muslims in the Backward classes category, Justice B.S. Chelameswar of the Andhra Pradesh high court had opined:

“The state cannot exclude from its consideration the demands, entitlements of any constitutional claimants on the ground of religion, faith or belief. Whether a group, caste or class is entitled to the benefit of affirmative action does not depend upon religion, faith or worship.”

And finally, in the Indra Sawhney case, the constitutional bench of nine judges unequivocally endorsed the necessity of considering backward Muslims as part of the OBC category based on the compelling findings of Backward Classes Commission reports: 

“This inadequate representation is not confined to any specific section of the people, but all those who fall under the group of social backwardness whether they are Shudras of Hindu community or similarly situated other backward classes of people in other communities, namely, Muslims, Sikhs, Christians etc.”

The AP Muslims case

Even the Bommai government’s statement that a similar reservation for Muslims was struck down by the Andhra Pradesh high court as unconstitutional is a half truth. The Andhra Pradesh government provided 5% reservations for Muslims in 2004, which was struck down by the high court since the government had not consulted the Backward Classes Commission and the total quantum of reservations exceeded the upper limit of 50%. The AP government reintroduced the 5% reservation to Muslims in 2005, now based on a recommendation by the Backward Classes Commission. This was also struck down by the Andhra Pradesh high court on the basis of inadequate data to establish that all the Muslims in the state are backward. In both cases, the reservation for Muslims was struck down on the basis of procedural impropriety, not because it was religion-based. 

Later, the Andhra Pradesh government constituted the P.S. Krishnan Committee, which undertook an extensive and intensive study of the problem for more than a year and recommended the creation of a Group ‘E’ within the OBC category providing 4% reservation for 14 major and most backward Muslim communities, so that it did not exceed the upper limit of 50% reservations. 

This was also challenged in the high court which struck down the order in a 5-2 majority judgment in February 2010 on the grounds of a) improper information, and b) the possibility of increased conversion since the reservation is religion specific. But when this was challenged in the Supreme Court in 2010, a three judge bench headed by the then Chief Justice of India K.G. Balakrishnan stayed the high court order and allowed the continuation of the reservation for the scheduled 14 communities of the Muslims as per the act till the final order. 

The bench also transferred the case to larger bench since several constitutional issues were involved. Then the case came before the bench dealing the EWS reservation. But since the constitutional bench never marked it for hearing, the case remains pending, last mentioned on September 6, 2022. 

Thus the Bommai government’s justification that the Andhra Pradesh reservation for Muslims was struck down by the court because it was religion-based is a half truth. 

However, the claim made in the government order that there was no recommendation or empirical study when 4% reservation was given to Muslims under classification 2B is an utter lie. 

A government order dated July 25, 1994, which created the exclusive 2B category for Muslims, clearly states that the classification is based on the report submitted by the Third Backward Classes Commission headed by Justice Chinnappa Reddy, which conducted an “elaborate investigation and collection of data and examination of such data thereby determining the socially and educationally backward classes in the state.” 

Political victory?

None of the arguments and justifications offered by the Bommai government would stand impartial judicial scrutiny. In fact, the BJP and Rashtriya Swayamsevak Sangh probably knows this better than anybody else. However, even when the court overturns this communal order, the BJP will have won its political point by portraying itself as a martyr for a Hindu cause. Legal defeats for the BJP have always provided political victories for its agenda, since its hegemony over the public discourse is unchallenged.  

The motive behind the new formula is thus both political and communal and it should be defeated politically. 

Shivasundar is a columnist and activist in Karnataka.