(File Photo)
In what has been described as a deft political manoeuvre, the Government of Karnataka, led by Chief Minister Basavaraj Bommai, has announced its decision to scrap the 4 per cent reservation available to Muslims in the State, and re-distribute it among certain sections of the Vokkaliga and Lingayat communities. Muslims however, are now eligible for reservation under the Economically Weaker Section (“EWS”) category, where they have to compete with other communities such as Brahmins, Jains, etc. The move has drawn flak from various Muslim bodies, who have declared their intention of challenging the move in Court. While the official notification by the government is yet to arrive, here’s a brief history of reservation for Muslims in Karnataka and a short explainer on the legal complexities involved in the issue.
Reservation for Muslims in princely Mysore
As in Madras, a “Non-Brahmin” movement had also started brewing in the princely state of Mysore. In 1916, various leaders, chiefly from the Vokkaliga and Lingayat communities gave a representation to the then Maharaja of Mysore, Sri Nalwadi Krishnaraja Wadiyar IV. In the year 1918, The Maharajah constituted a committee under the chairmanship of Justice Miller, Chief Judge of the Chief Court of Mysore, in order to deliberate what steps can be taken to increase the representation of Non-Brahmins in the services of the Mysore state. On the basis of recommendations of this committee, the Maharaja of Mysore introduced the policy of reservation in favour of certain Non-Brahmin Hindu communities, including the dominant Vokkaligas and Lingayats, as well as Muslims, in the year 1921.
However, it is interesting to note that the recommendations of the committee could be introduced only at the cost of Bharat Ratna Sri M Visvesvaraya (popularly known as “Sir MV”), the visionary Dewan of Mysore, resigning from service. Sir MV was a strong believer in meritocracy, and preferred the opening of schools and other measures for the upliftment of the backward classes instead of reservations. Sir MV on his part, also felt that the Maharaja was anxious to placate the Non-Brahmin leaders. It was as a consequence of this Non-Brahmin movement, that the Muslims of the erstwhile Mysore state, known today as the ‘Old Mysore Region’ in Karnataka, availed reservation.
Independent India
After the adoption of the Constitution, the policy of reservation as was in force in Old Mysore did not continue. Muslims were granted reservation in the state of Mysore in Independent India for the first time 1962, on the recommendation of R. Nagana Gowda Commission. This was achieved through an executive order which brought certain castes among Muslims under the Other Backward Classes (“OBC”) category. This was followed by multiple rounds of litigation in the High Court of Karnataka as well as the Supreme Court interspersed with reports of three commissions, i.e. the Havanur commission, the Vekataswamy commission, and the O Chinappa Reddy commission. In the meantime, due to linguistic reorganization of states, the larger state of Karnataka also came into existence 1971. While the litigation was non-conclusive, the commissions opined in favour of reservation for Muslims. It was in 1994, that Muslims, as a whole, were included in category II (B) of the classification of reserved communities, which enjoyed 6 per cent of quota. Consequent to the Supreme Court’s decision in the Mandal Commission case all OBC quota was trimmed to bring it to an aggregate of 27 per cent. Thus Muslim quota was also brought down to 4 per cent in the year 1995, which has continued since then.
Muslim Quota – How does it work?
The Govt. of Karnataka has created a number of categories in order to distribute the benefits of reservation among the Other Backward Classes. These categories are I, II(A), II(B), III(A), III(B). Each of these categories comprises a number of castes and is alotted a percentage of the reservation benefits. The Government notifies the list of castes included in every category from time to time. Till now, category II (B) comprised exclusively of Muslims, and enjoyed 4 per cent of the total 32 per cent reservation available today to Other Backward Classes in Karnataka.
The Government of Karnataka has now declared that category II (B) would be abolished. Simultaneously, two new categories have been created, i.e. II(C) and II (D). The 4 per cent quota previously available to II (B) is now sought to be distributed among the newly created II(C) and II(D) categories. II(C) is to comprises of various castes of the Vokkaliga fold and enjoys 6% of reservation [2 per cent of from the abolished II (B) and 4 per cent otherwise]. II (D) comprises of various castes of the Lingayat fold and enjoys 7 per cent of total reservation [2% from the abolished II(B) and 5 per cent otherwise].
In substance, the quota previously available to Muslims will now be distributed among Vokkaliga and Lingayat caste-groups. These include castes which enjoyed reservation under the previous reservation regime as well as certain new inclusions made in this decision.
The Question of Constitutionality of Muslim Quota
The Constitution of India, as it was originally enacted, contained only one provision which could be said to justify reservation in favour of communities who are today referred to as “Other Backward Classes” (communities other than those coming under SC or ST categories but availing reservation). That was Article 16(4). Article 16(1) mandated that:
“There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.”
Article 16(4) clarified that nothing in Article 16 from making reservations in favour of backward classes. Article 16(4) read as:
“Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
Subsequently, as an aftermath of various court cases which challenged reservation to communities other than those coming under the SC or ST categories, many amendments were made to the Constitution, including to Articles 15 and 16. Article 15, which prohibited discrimination on grounds of religion, race, caste, sex or place of birth, was amended and clause (4) was inserted, which read as:
“Nothing in this article or in 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 Castes and the Scheduled Tribes.”
Thus, the position came to be that a community desirous of availing reservation, not coming under the Scheduled Caste or Scheduled Tribe categories, must constitute a “Socially and Educationally Backward Class”.
Now the question arises that whether the Muslim community, as a whole, constitutes a “Socially and Educationally Backward Class”?
While answering this question, certain legal and factual nuances need to be kept in mind.
Whether rightly or wrongly, it has since long, been the position of the Government of India, various State Governments, as well as the Judiciary, that there are certain “castes” among the Muslims as well as the Christians constitute a Socially and Educationally Backward Class. This position was also taken by the infamous Mandal Commission, and consequently many Non-Hindu groups were granted reservation as OBCs. In fact, even in Karnataka, in addition to the 4% quota that was given to Muslims under category II(B), certain “Muslim castes”, such as Chapperband, were, and still are, entitled to reservation under Category I.
When it is claimed that there are “castes” or groups within the Muslims which are Socially and Educationally Backward, it necessarily follows that there are also castes which are not so backward. In fact, the National Commission for Backward Classes once advised the Central Government that “Muslim community is not a socially homogenous class or community, and that many of the Muslim groups or sections among Muslims enjoy high social status.” (Emphasis mine) Therefore, in the words of Justice V.V.S. Rao, “It needs no emphasis that reservations under Articles 15(4) and 16(4) result in reduction in the number of seats available, in academic courses and posts in public services, on the basis of merit. There is every need, therefore, to ensure that only “the backward classes” and none else are extended the benefits of such reservation.” (Emphasis mine)
Thus, the solitary inevitable conclusion which follows from these considerations is that reservation in favour of Muslims en masse, offends the right to equality enshrined in Articles 14, 15, and 16 the Constitution.
Moreover, the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, etc.) Act, 1990, defines “Other Backward Class” as “the communities, castes, and tribes notified by the State Government from time to time under Article 15(4) and Article 16(4) of the Constitution.”
This definition needs to be juxtaposed with the conclusion arrived in the aforementioned report of the National Commission of Backward Classes that “Muslims are not eligible for inclusion in the list of backward classes under Articles 15(4) and 16(4) of Constitution of India” (Emphasis mine).
From this it becomes amply clear that, the policy of 4% quota to Muslims en masse, is not only inconsistent with the Constitution of India, but even the State legislation of Karnataka.
It is also pertinent to note that the State of Andhra Pradesh, in the year 2005 had attempted by way of an ordinance, to grant reservation for the Muslim community. The ordinance was struck down and declared unconstitutional by a five-judge bench of the Andhra Pradesh High Court. The appeal from that decision is still pending in Supreme Court, and is yet to be heard on merits.
A Question of Secularism
While the previous section addressed the issue on the basis of existing jurisprudence, which predominantly focuses on Social and Economic Backwardness, there are much larger questions that need to be addressed here. While the State is empowered to give preferential treatment on the grounds of Social and Economic Backwardness, can the notion be taken to the extent of giving preferential treatment to one religion entirely?
In simpler terms, the question, applied specifically to our case would be, assuming that the entire Muslim community is found to be Socially and Educationally Backward, would it justify the extension of reservation to them?
Perhaps a number of lawyers and judges do hold such an opinion. Its expression can be summarised in the words of Justice Sudarshan Reddy, who once said “Muslims as a group are entitled to affirmative action/social reservations within the Constitutional disposition, provided they are identified as social and educational backward class for the purpose of Article 15(4) and backward class of citizens Under/Article 16(4). Providing social reservation to the Muslim community or sections or groups amongst them in no manner militate against secularism which is a part of the basic structure of the Constitution.”
However, this view, in my humble opinion is grossly incorrect. To give such a wide interpretation to the term “Socially and Educationally backward classes” in Article 15(4) and “backward classes” in Article 16(4) would be to defeat the purpose of Articles 15 and 16 read as a whole. The aim of both the Articles is to prevent discrimination on the basis of religion, race, caste, and sex, place of birth, etc. The fourth clause in both the Articles is only meant to alleviate inequality arising on account of historic injustice or other such social processes. It is not a device which can be used create a new social hierarchy.
An entire caste may be treated as socially and educationally backward and given reservation, but a religion, especially Islam cannot be treated so. That is because the historical injustices that resulted in inequalities between caste groups are absent in the case of Muslims. The history of inter-caste conflict is radically different from that of inter-religious conflict in India. For example, significant parts of what is today considered Karnataka, were under Muslim rule for a significant period. In certain parts of Karnataka, which formed a part of the erstwhile Nizam’s dominions (Hyderabad), Muslims enjoyed special status and privileges. Gulbarga, Bidar, Bijapur have been the capitals of various Muslim rulers.
Last but not the least, it ought to be mentioned that our nation has already been partitioned once, on the lines of religion, and the processes which culminated in the partition also began from a very similar demand – i.e. the demand for separate electorates.
Viewed in the light of all these facts, it becomes clear that reservation for Muslims in the name of Social and Educational Backwardness is not only a glaring attack on the secular nature of our polity, but also an injustice to Hindus who are the genuine beneficiaries of Articles 15(4) and 16(4).
Is There A Procedure For Withdrawing Reservation?
Incidentally, the entire political fracas going on right now in Karnataka also calls for the discussion of another important question; that is, is there a right way in which reservation is to be withdrawn for a particular community? Is the manner in which it has been done now bad in law? While the exact same question has not yet come up before a court of law, certain legal facts call for our attention.
Firstly, that the Constitution of India does not in any way specify the manner in which reservation is to be given to any community by the any government. It also does not prescribe any manner for its withdrawal.
The Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, etc.) Act, 1990 mandates that in employment under the state government, reservation shall be made for “to such extent and in such manner as may be specified from time to time in order made by the Government under clause (4) of Article 16 of the Constitution of India” Article 16(4), quoted earlier, is merely an enabling provision and does not impose any procedural requirements. Thus, it is left entirely to the government to determine the mode of choosing who will benefit from reservation, as well as the manner of determination of such beneficiaries.
Once again, “the manner” of determining who will get reservation has not been notified by any Government in Karnataka till now. However, the Governments have time and again made this decision by including or excluding the name of a community in the various categories explained previously, by the way of Government Notification or Governmental Orders (GOs). It is in this way that the quota available to exclusive Muslims will now be transferred to others, and Muslims will be placed in the EWS category.
The power of the Government to extend or withdraw reservation are unfettered, or at least not fettered expressly by any provision of law till now.
While it is true that the many commissions appointed by the Government of Karnataka recommended that reservation can be given to Muslims, the recommendations are in no way binding on the government. For example, the report of the TVenkataswamy commission, which was constituted in 1984 and recommended the exclusion of Vokkaligas and Lingayats from the OBC fold, was not accepted by the then Government. Thus, it is clear that the opinions of all these commissions are purely recommendatory, and do not impose any legal obligations on the government. Nor is there any legal requirement for constituting a commission every time a change is to be made to the list of classes of citizens availing reservation.
Conclusion
The ruckus being created by the opposition in Karnataka is unsurprising, as the status quo which was taken for granted for a very long time is finally being upset. We will also certainly see a formal challenge to the decision in a Court of Law once the government officially issues the notification giving effect to its decision. Of course, the course that any such legal proceeding takes, or the quality of the fight put in by the government in it, or which government would be in power when the matter is in Court, are all matters which are rather averse to rational prediction. But first, the Government has to issue the notification or order. The waiting game has just begun.
(The writer is Studying Final Year B.A; LL.B. (Hons.) at School of Law, SASTRA University, Thanjavur, Tamil Nadu)
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