INTRODUCTION
Reservation is a system of affirmative action in India that provides historically disadvantaged groups representation in education, employment, government schemes, scholarships and politics. Based on provisions in the Indian Constitution, it allows the Union Government and the States and Territories of India to set reserved quotas or seats, at particular percentage in Education Admissions, Employments, Political Bodies, Promotions, etc, for “socially and educationally backward citizens. The Constitution of India states in article 15(4): “Nothing in [article 15] 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 of or for the Scheduled Castes and the Scheduled Tribes.” Article 46 of the Constitution states that “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
THE MANDAL COMMISSION
India had some forms of reservation systems before the British Raj, in many of the princely states, these were wildly distributed and the type of reservations offered varied greatly across the country. More general and formal systems of reservations were put in place as early as 1909, with the British Raj introducing the elements of reservation in the Government of India Act of 1909. The 1909 reservations were inherently political reservations (reservations in political seats) as opposed to economic (reservations in employment for state services). The economic reservations preceded the political ones by a long time margin. It is worth knowing what exactly did the phrase ‘backward caste’ meant in the British Raj. The ‘backward castes’ were defined as ‘everyone except Brahmins and other forward castes. There was no differentiation between the lower castes and no religious division either.[1]
The Supreme Court of India in 1992 came up with a landmark judgment in Indra Sawhney v. Union of India [2] that changed the outlook of India’s reservation policy. This judgment upheld the Mandal Commission Report of 1991 and laid down two important provisions. The criteria for giving reservation was social and educational backwardness. It stated that the total percentage of reservations in India is supposed to be 50% as mentioned in Article 16(4), beyond which no reservation would be given unless in exceptional circumstances. the Mandal Commission or the Socially and Educationally Backward Classes (SEBC) Commission was established to assess the situation of the socially and educationally backward classes. The commission did not have exact population figures for the OBCs and so used data from the 1931 census, thus estimating the group’s population at 52 per cent. In 1980, the commission’s report recommended that a reserved quota for OBCs of 27 per cent should apply in respect of services and public sector bodies operated by the Union Government. It called for a similar change to admissions to institutes of higher education, except where states already had more generous requirements. It was not until the 1990s that the recommendations were implemented in Union Government jobs. In 2019 the government announces the 10% reservation in educational institutions and government jobs for economically weaker section of the general category. The Supreme Court of India ruled in 1992 that reservations could not exceed 50 percent, anything above which it judged would violate equal access as guaranteed by the Constitution. It thus put a cap on reservations. However, the recent amendment of the constitution exceeds 50% and also there are state laws that exceed this 50 percent limit and these are under litigation in the Supreme Court. For example, in the State of Tamil Nadu, the caste-based reservation stands at 69 percent and applies to about 87 percent of the population.
STATUS IN INDIA:
The Tamil Nadu government has allotted 3.5% of seats each to Muslims and Christians, thereby altering the OBC reservation to 23% from 30% (since it excludes persons belonging to Other Backward Castes who are either Muslims or Christians).[3]
The Government of Andhra Pradesh introduced a law enabling 4 percent reservations for Muslims in 2004. This law was upheld by the Supreme Court in an interim order in 2010 but it constituted a Constitution bench to look further into the issue.[4] The referral was to examine the constitutional validity of quotas based on religion.[5] Kerala Public Service Commission has a quota of 12% for Muslims.[6] Religious minority (Muslim or Christian) educational institutes also have 50% reservation for Muslim or Christian religions. The Central government has listed a number of Muslim communities as backward Muslims, making them eligible for reservation. The Andhra Pradesh government provided 5% reservations for Muslims in 2004, which was struck down by the high court since the government had not consulted the Backward Classes Commission and the total quantum of reservations exceeded the upper limit of 50%. The AP government reintroduced the 5% reservation to Muslims in 2005, now based on a recommendation by the Backward Classes Commission. This was also struck down by the Andhra Pradesh high court on the basis of inadequate data to establish that all the Muslims in the state are backward. In both cases, the reservation for Muslims was struck down on the basis of procedural impropriety, not because it was religion-based.
Later, the Andhra Pradesh government constituted the P.S. Krishnan Committee, which undertook an extensive and intensive study of the problem for more than a year and recommended the creation of a Group ‘E’ within the OBC category providing 4% reservation for 14 major and most backward Muslim communities, so that it did not exceed the upper limit of 50% reservations. [7]
RECENT CHANGES IN KARNATAKA
Chief Minister Bommai, in a press conference to announce the government’s new reservation formula, declared that Muslims were removed from the Backward list because the secular Indian constitution does not provide for religion-based reservation. He added that a similar religion-based reservation provided by the Andhra Pradesh government had been struck down by the Andhra Pradesh high court.
The Cabinet decided to exclude Muslims from the OBC category and scrapped the 4% reservation given to them under Category 2B.This has been divided equally among Vokkaligas and Veerashaiva-Lingayats for whom new categories of 2C and 2D have been created respectively. Following the change, the reservation quantum for Vokkaligas and others in the group went up from 4% to 6% and for Veerashaiva-Lingayats and others in the group, from 5% to 7%.Earlier, the two communities were under 3A and 3B respectively, which stand scrapped.The Cabinet also recommended internal reservation among the 101 SCs, a long pending demand of the SC (left) faction to the Union Government. Of the 17% reservation given to SCs in Karnataka, it has sliced up 6% to SC (left), 5.5% to SC (right), 4.5 % to SC (touchable) and 1% to SC (others).While the basis for internal reservation was the recommendation of the A. J. Sadashiva Commission report of 2012 when reservation to SCs was pegged at 15%, the Government has adjusted the share, based on a Cabinet sub-committee report, as per the new reservation quota that has been hiked to 17%.
CONCLUSION:
The British had reservations for Muslims. Later, the reservations were repealed with nothing to take their place, leaving the Muslim community hapless. The SCs and STs had their rights enforced by the Central Government, while the Other Backward Classes, consisting of mainly Muslims, were denied. During all this, Muslims have lost more than 70 years worth of structural help given to their non-Muslim counterparts. All this goes a long way in explaining the current situation of Muslims where they lag behind in almost all socio economic categories on almost all development indicators.
[1] https://www.siasat.com/muslim-reservation-in-india-before-and-after-1947-2236327/
[2] https://indiankanoon.org/doc/1363234/
[3] “Reservation on basis of religion”. The Economic Times. ISSN 0013-0389
[4] Viswanathan, S. (16 November 2007). “A step forward”. Frontline. Vol. 24, no. 22.
[5] https://economictimes.indiatimes.com/news/politics-and-nation/centre-seeks-scs-approval-on-muslim-reservation/articleshow/30704696.cms?from=mdr
[6] “Reservation chart by Kerala Public Service Commission”. 7 September 2020.
[7] https://thewire.in/communalism/obc-reservation-muslims-karnataka
This article was written by Roshni S, final year student, Kerala Law Academy Law College, Trivandrum.
