Religion based reservation a fraud on Constitution 

By Bhupendra Yadav?

The Government of India through a resolution has provided a sub-quota of 4.5 per cent for socially, educationally and backward classes of citizens belonging to minorities in the 27 per cent OBC reservation has undermined not only the spirit of Constitution of India but also subvert the various judgments of the Hon’ble Supreme Court of India as well as without any authority under any law specifically under National Commission for Minorities Act 1992 and National Commission for Backward Classes Act, 1993.

The Ist attempt for including religious reservation was set-aside by the Hon’ble Apex Court in the case of State of Madras Vs. Champakam Dorairajan reported in 1951 SCR 525 and also in the recent judgment Ashok Kumar Thakur Vs. Union of India reported, 2008 (6) SCC  1 at page 698, wherein the Court has stated that:

“603. To be clear, there is no claim arising out of the goal to promote a casteless society. No right of action exists. The right of action is found in secularism, through not explicitly found in the unamended Constitution, the original Frames made it clear that India was to be a secular democracy. Discrimination based on religion is prohibited by Article 14, 15(1) and 15(2), 16(1) and 16(2), 29(2) and 325”.

Reservation under the scheme of Constitution of India is provided under Article 15(4) which states that “nothing in this article or clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Caste and Scheduled Tribes”. The said wording are very specific and conclusive to the effect that there cannot be any reservation on the basis of two criteria i.e. “Socially and Educationally” (both inclusive). The word  “Religion” is deliberately missing by the wisdom of framers of Constitution. It can be stated with the authority that Constitution of India does not provide or mandate any reservation which is based on religion.

Hon’ble Supreme Court in number of cases has stated that religion in itself is not a class and cannot fall within the category of Article 15 and 16 as a criteria of reservation. [State of A.P. Vs. P.Sagar, 1968 (3) SCR 595], [Triloki Nath Tikku Vs. State of J&K 1969 (1) SCR 103].

The Government of India vide a Resolution is trying to insert religion to be  the  basis of reservation. Article 340 of the Constitution of India provides for appointment of a Commission to investigate the conditions of the backward classes. However, the same was not appointed till the 9 Judges Constitution Bench of Hon’ble Supreme Court in the matter of Indra Sawhney Vs. Union of India, 1993 Supp (3) SCC 217 after considering the various provisions has directed in paragraph 861 at page 771 that “a permanent body be setup for inclusion and other ancillary subjects for other backward classes”. On this direction National Commission for Backward Classes Act,1993 was enacted and a National Commission for Backward Classes  has been instituted. The said Commission has the object for inclusion of any backward class. The word religion is missing in the entire act and there is nothing in the act from where it can be remotely sense that any reservation can be made on the basis of religion. The Government of India has not taken into consideration the Annual Reports of the National Commission for Backward Classes for the year 2007-2008 wherein certain OBC Castes/Communities have been included in various States, including amongst the other religion also.

The report of National Commission for Religious and Linguistic Minorities (Rangnath Commission) in paragraph 26 (Chapter-VI) has given statistics about the backward classes, as per religion basis. The break-up states Hindus-2083, Muslims-52, Christian-22 and Sikhs-2 (total 2159) i.e. the OBC communities in Muslims are proportionally very low and as such the Religious Reservation to OBC Muslims to the extent of 4.5 per cent is very high in terms of population also.

In the FAQ (Frequently Asked Question found on the website of Backward Class Commission) in reply to “whether backward sections of the religious minorities are also eligible for inclusion in the list of OBC’s? The reply states that “…….when a caste/community or group in the list it is included irrespective of the religion or denomination followed by the members of that caste/community or group”. The said reply clearly indicates that reservation can be made only to the OBC as a class not as a religious OBC as a class. In other words the classification amongst the OBC on the basis of religion is arbitrary as well as without any nexus to its object. The object must be the eradication of social and educational backwardness, which cannot be a detriment on the basis of particular religion.

The Supreme Court has consistently held that the power to provide for reservations for backward classes under Article 15 and 16 is an enabling power, but if the State is exercising the power of providing reservations for designated backward classes, it has to demonstrate the existence of backwardness and inadequacy of representation of the backward classes in public services. These are constitutional condition precedents that have to be satisfied by the State. Word religion is “neutral” in the reservation but they are given reservation on the basis of social, educational and economic backwardness as backward classes, as mentioned in the Article 15(4).

The report of the Backward Class Commission 1980 (Mandal Commission) in its para 12.18 (page 56 of Vol-1) evolved the following criteria for identifying non-Hindu OBC:- (a) All untouchables converted to any non-Hindu religion; and (b) Such occupational communities which are known by the name of their traditional hereditary occupation and whose Hindu counterparts have been included in the list of Hindu OBCs. (examples, Dhobi, Teli, Dheemar, Nai, Gujar, Kumhar, Lohar, Darji, Badhai, etc).(para 12.17)

None of the Act or report has not provided any recommendation for OBC reservation only on religious basis. The attempt of the Union of India will destroy the very basic backbone of Indian Society i.e. the Constitution of India is a secular and discrimination based on religion is prohibited. ?