Context

Recently, In election season, India is debating fundamental constitutional questions around Religion based Reservation in particular questioning around Muslim Quota.

• Recently, the issue of the 5% reservation quota given to Muslims in Andhra Pradesh in 2004 has also resurfaced debate surrounding the religion based reservation.

Constitutionality On Religion based Reservation  

• Equality vs. Equity: The Indian Constitution moves beyond mere equality to ensure equity, allowing for differential treatment or special measures for historically disadvantaged groups. 
  • Dynamic Concept of Equality :  The Supreme Court has held that equality is a dynamic concept with many aspects and dimensions, and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits (E P Royappa vs State Of Tamil Nadu, 1973).

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• Article 16(4) and 15(4): These articles empower the state to make provisions for reservation in favor of backward classes and socially and educationally backward classes, including Scheduled Castes and Scheduled Tribes. 
  • Article 15 specifically prohibits the state from discriminating against citizens on grounds only of both religion and caste (along with sex, race, and place of birth). 
  • Non-Discrimination Clause : In The Supreme Court’s judgment in State of Kerala vs N M Thomas (1975), reservation is considered not an exception to the equality/ non-discrimination clauses of Articles 15(1) and 16(1), but as an extension of equality. 
    • The crucial word in Articles 15 and 16 is ‘only’ — which implies that if a religious, racial, or caste group constitutes a “weaker section” under Article 46, or constitutes a backward class, it would be entitled to special provisions for its advancement.

Have Muslims ever been given reservation by reducing the quota for Scheduled Castes (SCs), Scheduled Tribes (STs), or Other Backward Classes (OBCs)? 

Some Muslim castes were given reservation not because they were Muslims, but because these castes were included within the backward class, and reservation was given without reducing the quota for SCs, STs, and OBCs by creating a sub-quota within the OBCs.

Religion Based Reservation in Some States 

• Kerala: Muslims were included in the OBC category, forming a sub-quota within the overall OBC reservation. 
  • Muslim sub-quota Religion based reservation was first introduced in 1936 in Travancore-Cochin state. 
  • After the state of Kerala was formed in 1956, all Muslims were included in one of eight sub-quota categories, and a sub-quota of 10% (now 12%) was created within the OBC quota.
• Karnataka:  In 1995, implemented 4% Muslim reservation within the OBC quota. 
• • Thirty-six Muslim castes which are part of the central list of OBCs were included in the quota. 
• Tamil Nadu: Based on the law in 2007,Reservation provided within the 30% OBC quota, a subcategory of Muslims with 3.5% reservation. 
• • This did not include upper-caste Muslims. 
  • The Act gave reservation to some Christian castes, but this provision was subsequently removed on the demand of Christians themselves. 
• Andhra Pradesh & Telangana : The question of giving Muslims reservation along with 112 other communities/ castes was referred to the Andhra Pradesh Backward Classes Commission in 1994.
• • In 2004, based on a report by the Commissioner of Minority Welfare on the social, economic, and educational backwardness of Muslims,
    •  The government provided 5% reservation, treating the entire community as backward. 
  • However, later The High Court struck down the quota on the technical ground that 
    • The mandatory consultation with the AP Commission for Backward Classes was not done. 
    • It also held that the minority welfare report was bad in law because it laid down no criteria for determining backwardness. 
  • The ruling faced a challenge in the Supreme Court, which in 2010 ordered it to maintain the existing state until the matter was fully heard and decided.
  • In Telangana : .After the bifurcation of Andhra Pradesh in 2014, the TRS government in Telangana passed a law in 2017 proposing 12% reservation for OBC Muslims on the basis of the reports of the G Sudhir Commission and the Backward Classes Commission.

Arguments in Favor of Religion Based Reservations in India 

• Promotes Equity: The concept of reservations aims at offering fair and equal opportunities to the marginalized sections of society. 
  • Implementing reservations based on religion could extend this principle to religious minorities who historically lag behind in education and financial stability. 
• Constitutional Mandate: Article 15(1) of the Indian Constitution prohibits discrimination based on religion. The Supreme Court, in cases like Nainsuleh Das vs. State of Uttar Pradesh, has emphasized that this constitutional provision extends to all political and societal rights. 
  • Article 341 of the Constitution and the 1950 Presidential Order state that only Hindus are entitled to inclusion within SCs. However, Sikhs were included within SCs in 1956, and Buddhists in 1990. Muslims and Christians remain excluded. It could be argued that this too, is ‘religion-based’ reservation. 
• Empowerment and Social Upliftment: Religion based reservations could potentially uplift religious minorities who face socio-economic disparities. 
  • Addresses Inequality: By recognizing the unique challenges faced by religious minorities, religion based reservations can address systemic inequalities. Such measures can help bridge the gap in educational and economic status among different religious communities. 

Arguments Against Religion Based Reservations in India 

• Threat to Social Harmony: Introducing reservations based on religion may lead to social unrest and division within society. 
  • Favoring one religion over others could breed distrust among different religious groups and undermine social cohesion. 
• Undermine Secularism : Critics contend that offering reservations based on religion contradicts the secular principle enshrined in the Indian Constitution, which promotes equal treatment of all religions by the state.
  • Granting reservations based on religion contradicts the foundational principles of the Indian Constitution, as advocated by Dr. B.R. Ambedkar. 
    • The Constitution emphasizes equality and prohibits discrimination based on religion, making religion based reservations unconstitutional. 
• Risk of Conversion: Religion based reservations may inadvertently promote religious conversions as individuals seek to benefit from reservation policies. 
  • This could further exacerbate tensions between different religious communities and undermine secular values. 
• Ignoring Socio-Economic Factors: Reservations based on religion overlook the diverse socio-economic realities within religious communities. 
  • Poverty and disadvantage exist across all religions, and granting reservations solely based on religious identity fails to address the nuanced needs of individuals from disadvantaged backgrounds. 

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Conclusion

While religion based reservations may have potential benefits in addressing socio-economic disparities among religious minorities, they also pose significant challenges to social harmony, constitutional values, and the holistic addressing of socio-economic inequalities.