By Rajeev Dhavan (Supreme Court Lawyer)
This is a politically emotive issue. A party siding with the Muslims risks the fundamentalist Hindu vote. If not, Muslims, have sufficient electoral numbers. Electoral suspicions prevent clear thinking on the subject. The latest controversy is over Chief Justice Madan Lokur’s judgment of 28 May 2012 in the A. P. High Court striking down 4.5 per cent reservation, including access to the prestigious Central Educational Institutions under the Act of 2006, for Muslims and other minorities.
Both the Union’s Sachar Commission and the Backward Classes Commission of Andhra Pradesh assert that, amidst success stories, Muslims are backward classes. Imtiaz Ahmad’s four volume anthology shows social stratification based on caste amongst Muslims. A large number of Muslim communities are disadvantaged and discriminated against, with high levels of vulnerability.
The Constitution’s dispensation recognises SCs and STs as the backward classes (BC) entitled to affirmative action generally, especially in matters of education and access to the civil service. In the Mandal judgment (1992), the Supreme Court accepted my argument that reservation in the bureaucracy empowered the disadvantaged to share in the state’s power. Today many communities want to be SC/ STs because they are the ‘preferred’ reserved class. The other reserved classes are the Other Backward Classes (OBCs). In the Constituent Assembly, the OBC categories reflected the needs of the princely states such as Mysore. But from the 1970s, OBC politics swept the north. The Mandal controversy (1990-2) arose because the Union adopted OBC reservations.
The Supreme Court’s Mandal decision (1992) is criticised because it allowed selection based on caste as a starting point and factor. The judges’ formula was that casteism is bad but reservation for OBCs based on caste is consistent with the ground realities. The Constitution used the word ‘classes’. To exclude ‘caste’ as a ‘class’ would make the Constitution ‘caste blind’ to social realities. Just as in America, the Constitution could not be ‘colour blind’ and deny blacks affirmative action. In the Mandal decision (1992), there is clear recognition of minorities not being excluded from OBC status if shown to be backward. Religion could not be the basis for their exclusion because their inclusion based on backwardness was not ‘only’ on grounds of religion.
Muslims as a community cannot be granted reservations. Recognition of OBCs is not a matter of political largesse. Commissions have to select and review OBC reservations. Once this exercise is honestly done, the court’s role was limited to ensuring some basis for inclusion exists.
In Andhra, the Muslim demand was examined by the Anantharaman Commission (1968-70) which recommended inclusion of two Muslim groups namely Dudekula and Methar, a Minority Commission (1979), a sub-committee (1982), Murlidhar Committee (1982) which recommended the inclusion of Qureshis, a Cabinet Committee (1992), the 1994 order to include other Muslim communities such as the Kapus. On its part the court struck down the reservation in 1995 and again in 2004; and in 2005 on the grounds Muslims are not a homogeneous group as made clear from 14 included and 10 excluded groups.
In the present case, the Union government may well have bungled. On 22 December 2011, back dated to Jan 1, 2011, a 4.5 per cent sub quota was carved out for minorities recognised under the National Minorities Act of 1992 in the overall 27 per cent OBC quota including for the prized Central Educational Institutions. The 4.5 per cent was not for all “minorities” but only backward groups amongst minorities.
Was this permissible? Can minority OBCs have their own 4.5 per cent quota? From 1963 to 2012, the Supreme Court has held that OBCs can be divided into three categories: the backward OBCs, the more backward ( MBCs) and the creamy layer. The MBCs were entitled to their special distinct quota and have priority over others as a group. The creamy layer was not a group but a test applied to separate the successful OBCs who were so privileged that they could not be treated as OBCs at all. Amongst the Muslim or minority OBCs, the creamy layer would also be excluded.
But, what was the basis for the 4.5 per cent minorities quota? There was no proof whatsoever that they were more backward i. e. MBCs who alone were permitted a quota-within-a-quota. Whether the minorities were linguistic or religious would make no difference.
For a distinct quota within OBCs, minority groups had to be MBC. No discrimination or preference can be made “only” on grounds of religion (Article 15(1)(2), 16(2)). The word ‘only’ is important. Minorities are not shut out from reservations and preferences – if backward. But this is because they are backward not because they are minorities. Unless shown to be more backward (MBC) minorities cannot – simply cannot – have a sub-quota amongst OBCs .
Chief Justice Lokur felt no need to go into constitutional niceties. It is true that the Andhra High Court has been highly resistant to reservation for Muslims – eventually conceding that only those Muslim groups shown to be backward were entitled to affirmative action. To do otherwise would be to discriminate against them on ground of religion. But to give minority backward groups a separate sub- quota was clearly wrong for both religious and linguistic minorities. A preferential separate quota amongst OBCs is permissible on only one basis: more backwardness. The court was right in accepting that a sub-quota based entirely on religion should be struck down.
Both the governments of AP and the Union have a duty to ensure that the minorities are protected. But creating ‘communal’ quotas is contrary to Indian secularism which abolished communal electorates in 1950 and provided affirmative action to all backward classes irrespective of religion. Playing communal politics with the Constitution is wrong.
– The writer is a Supreme Court lawyer