The case for reservations for Muslims within other backward class quotas has strong constitutional basis
Published Date – Thursday, 04/05/23 at 12:30pm
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By Pavan Kasturi, Anusha Karanam
Hyderabad: Union Home Minister Amit Shah recently said he would abolish unconstitutional reservations for Muslims within the OBC category in Telangana if they were elected to power and pledged to provide Other Backward Classes (OBCs) with the rightful opportunities they deserve.
Last month, the Karnataka government abolished the 4% OBC quota for Muslims and moved them to the EWS (economically weaker sector) category.this matter in L Ghulam Rasool v Karnataka The court commented on the move as “highly unstable and flawed”. In the current controversy, it is appropriate to debunk the myth by delving into the constitutionality of the reservations granted to non-Hindu beliefs in the OBC category.
misunderstanding
There are misconceptions such as reservations given to the Muslim community are based on religious identity and contradict the principles of the Constitution, the Andhra Pradesh High Court in AP BC Welfare Association v. AP State The 5% reservation brought under the OBC for Muslims in 2005 has been removed and subclassification of specific categories is not allowed in the reservation scheme.
In addition, the Constitutional Convention opposed reservations based on religious belief, and religion cannot be the primary marker of decision-making. Finally, there is no caste hierarchy in other religions, especially among Muslims, and there is no proper reason to identify them in the OBC like it is done for some castes in Hinduism.
debunking myths
During the debates at the Constitutional Convention, the term “backward classes” was subjected to various interpretations. Two main usages emerged: the first was an all-encompassing group in need of preferential treatment, including untouchables and tribes; the second was a class above untouchables but still disadvantaged, and the term “OBC” was used specifically for this purpose. In both usages, the idea is specific to the Hindu social structure.
However, one has to understand the difference between the Constituent Assembly Advisory Committee chaired by SC Mookerjee opposing the public reservation of parliament/parliamentary seats and the Constituent Assembly discussing whether to include minorities in backward classes for affirmative action. In the latter, it is clear that minorities are included in the OBC, as Dr Ambedkar often uses “community” instead of caste in his speeches, suggesting that backward classes include the community and not just a set of castes in the OBC.
Report of the Backward Class Commission after the Constitution [Kaka Kalelkar (1955) and Mandal (1980)] Including non-Hindu communities in the scope of the backward class states that apart from considering only caste in identifying OBC, other factors such as economic and educational factors should also be considered.
Furthermore, this view is reinforced in many precedents in SC such as Mr Balaji v Mysore State (1962). This is overturned when backwardness is determined solely on the basis of caste as caste is not the only determinant of backwardness.This position was later amended by the Nine Justice Indra Sawhney judgment (1992), stating that caste could be leading Identify the factors of backward class and consider that when it comes to non-Hindus, the identification of backwardness should be based on traditional occupation.
Also, the reservation of Scheduled Castes and Scheduled Tribes is not religiously neutral as it seeks to correct historical injustices such as untouchability and humiliation of Dalits in Indian society. But when it comes to OBC, it is religiously neutral and non-Hindu backward classes can have reservations in this regard. However, considering that even if this is not the case, many sociological scholars have established that social stratification exists even in Islam (similar to the Varna system). Based on this classification, they can legally be included in the OBC category.
Now, when it comes to the Associated Press High Court removing the 5% Muslim reservation in the OBC area, there are two reasons, oneThe additional quota is above the 50% cap set in the Mandal Commission case, and two, the state government has not provided any quantifiable figures to suggest that Muslims are underrepresented and therefore require additional reservations. These data are crucial to create such benefits as we can see that the same principles are followed in Maratha reservation case (2021) and BK Pavitra-I (Karnataka reservation Case 2017). The AP government later corrected that mistake by appointing a Krishnan committee, which provided the data and recommended a 4% reserve for certain Muslim communities.
politically profitable
It is clear that the OBC’s Muslim community retains a strong constitutional basis and it is hoped that the SC will be able to overturn the Karnataka government’s legally dubious and politically lucrative move to remove the Muslim community from the backward classes. But subclassification can be a must-use tool for the advancement of Muslims, classifying backward and more backward classes among Muslims with sound statistical evidence. The SC has allowed such a classification in Davinder Singh (2021).
One can point to the problem that several states in India have crossed the 50% cap (Tamil Nadu, Haryana, etc.), so why should Telangana be deprived of this initiative that favors its Muslim population?But it’s also important to note that the SC is adamant that the notion of equality cannot be undermined by the vigorous push for a reservation clause, so this 50% cap is constitutionally mandated Lakshman Rekha. But this has been criticized by many countries as a mathematical precision in terms of reservations that runs counter to reality.
Most recent EWS judgment (Janhit Abhiyan v Indian Union) again pointed out that conducting a caste census may be the only feasible way to determine the justification for the 50% quota limit. As of now, plus the 10% EWS reservation, the quota level is set at 60%.
A possible remedy that does not involve increasing existing quotas is to alleviate the rapidly growing congestion in the 27% OBC quota by identifying the social and economic impacts advanced class and caste in the OBC and relocate them to general categories. Given that the recently introduced EWS has been accused of being a quota for minorities (as the general category population is considered less than the allocated quota), should these newly relocated classes and castes need to take affirmative action, they can take advantage of the benefits of the EWS, thus providing a safety net . This will ensure that the real beneficiaries of the reservation policy can fully realize their benefits.
