Reservation and religion

Reservation has been an emotive issue for lot of Indians, since independence there has been reservation in government jobs under article 16(4), (4A) and other facilities under article 15(4) of the Constitution of India. It is interesting to note that while reservation in legislature on basis of caste or ethnicity (Anglo-Indians), under article 243D, was included in the Constitution by the constituent assembly, provision for reservation in education, job and promotion was added by the parliament after a string of adverse decision by the SC like in State of Madras v Champkam Dorairajan AIR 1951 SC 226 (date of judgment 09/04/1951) and various HCs which shot down proposals of reservation for backward classes. Thus to overcome this problem of judicial interference in executive domain, Pandit Nehru, the then PM of India, brought in the First Amendment Act in 1951, merely one year from the adoption of constitution, adding 15(4) which read “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.” While there has been little controversy about which caste or tribes may be classified in scheduled category (partially because this was done by the British and like many of the colonial relics the Indian government blindly copied the same; it is interesting to note that it was only after Nehru that for the first time this scheduled list was updated and made more inclusionary), there has been lot of controversy about which categories of citizens may be deemed to be ‘socially and educationally backward class’.

In his wildly popular Constitutional Law book Prof. M.P. Singh writes that the most contentious issues in application of 15(4) and 16(4), (4A) are (i) determination of backward classes and (ii) extent or quantum of reservation. However the political class of India solved the problem of determining the backward class again on the basis of caste although in Balaji v State of Mysore AIR 1963 SC 649 the Supreme Court held that caste cannot be the sole criterion for determining whether a person is backward within the meaning of article 15 and 16. This was in fact one of the earliest cases where the rationalization of reservation in terms of taking into account the economic factor was advocated by the Judiciary (we again find this stand in the judgment given by Bhandari, J in Ashok Kumar Thakur case in April, 2008). But given the legislature and executive love the easy way out in post 1990 Mandal Commission era the OBC reservation was again based on caste rather than economic capability.

With this introduction I would like to move to the main issue of this post reservation on basis of religion, under Indian constitution only SCs, STs and ‘socially and educationally backward class’ (in common parlance OBCs) can have reservation, but politicians being politicians wanted to bring reservation for minorities. The first plunge was taken in 1960s in Jammu and Kashmir, given that it is a Muslim majority state there was obvious anger when close to 30% avenues in education and government jobs were reserved for SCs and STs who were Hindus, so the J&K government under a GO reserved 50% vacancies for Muslims of Kashmir, 40% for Jammu Hindus and 10% for Kashmiri Pandits. The Supreme Court struck down this GO in Triloki Nath Tiku v State of J&K AIR 1969 SC 1 as being quota based on religion which is antithetical to the principles enshrined in Constitution. But this opened a bypass to have religion based quota, what if people of certain religion is classed as backward class and thus may enjoy the fruits of reservation. Post Indra Shawney v Union of India (2000) 1 SCC 168 in order to declare any section of society as OBC or SEBC there has to be a full fledged committee report which would ascertain the average backwardness in terms of education, social mobility of that community and if that figure is below what the government thinks is the margin of backwardness then the community would be given reservation. Using this logic states like Kerala, Tamil Nadu has allocated reservation for certain communities within Islam who for the government of the day are backward (all these reservations were upheld by their respective HCs). This way there was a new class created that of OBC Muslims, but for three times in quick succession Andhra Pradesh HC struck down this route of reservation. In February 2010 the court for the third time struck down “The Andhra Pradesh Reservation in favour of Socially and Educationally Backward Classes of Muslims Act, 2007” (A.P. Act 26 of 2007), which allotted 4% govt jobs to SEBC Muslims in AP, in Muralidhar Rao v State of Andhra Pradesh (Writ Petition No.15267 of 2007) (a juicy bit of side news: in all the three rejection AR Dave the CJ of AP HC had important role to play, in February 2010 around the same time of judgment, Dave, J was transferred to Bomay HC). Now what happened that AP HC broke the rule of the day and shut down the backdoor entry to 15 & 16, as per the Krishnan Committee Report based on which the SEBC commission recommended the AP reservation Act gave the following statistics:

	Population (2001) Millions	Muslim Population (2001) %	% of SEBC Muslims and General Muslims among Total Muslim Population
			SEBC Muslim		General Muslim i.e. non-SEBC Muslim
			1999-2000	2004-05	1999-2000	2004-05
India	1028.6	13.4	31.7	40.7	68.3	59.3
AP	76.2	9.2	10.7	19.5	89.3	80.5

However this data was based on Anthropological Survey of India’s projection data of 1994 according to the petitioner the breakdown of literacy rate among different religions based on 2001 Census of Andhra Pradesh would be:

	Literacy rate % among religious groups as per 2001 Census
	All religions		Hindus		Muslims		Christians		Sikhs
	Both	Female	Both	Female	Both	Female	Both	Female	Both	Female
State average of Andhra Pradesh	61.0	53.2	59.4	49.2	68.0	59.1	75.3	69.8	78.7	72.7

The court found that the SEBC commission had not ‘applied any scientific criteria to check’ the backwardness. The court also agitated the question as to how the figure of 4% fixed, Mandal Commission had recommended that reservation should be always proportional to population distribution and this has been established practice in all the states, in this case the total Muslim population is 9.2% of the total population in Andhra Pradesh and the percentage of backward classes among Muslims is 19.5%, thus, the total backward class Muslim population comes to around 2% of the total population in Andhra Pradesh yet 4% of the jobs were reserved, the Court held it to be unjustifiable and illegitimate.

Yet the next day WB government came out with a press note declaring a 10% reservation for OBC and SEBC Muslims in WB govt jobs. It is pertinent to note that there is an existing 7% reservation for OBCs in WB, there are 66 Hindu communities and 12 Muslim communities covered under this. In population term under present OBC reservation 16.83 Lakhs Muslims and 1.05 Crore Hindus are covered, under the new scheme 3 new Muslim communities will be brought under Muslim OBC quota and the total population that would be covered will be around 52 Lakhs. Thus for 52 Lakh OBC Muslim there is 10% quota while for 1.05 crore Hindu OBC there is 7% quota. Let us have a demographical analysis of the population of WB:

	Population (in lakhs)	Population in Percentage
Hindus	581.45	72.5
Muslims	202.10	25.2
Others	18.45	2.3
Total	802	100

Now let us have a breakup of OBC population in WB:

	Population (in lakhs)	Population in Percentage		Percentage reservation
		In the community	In entirety
Hindus	105	18.06	13.1	7
Muslims	52	25.73	6.48	10
Total	157		19.58	17

Thus to summarize in one line for 13.1% of population there is 7% reservation while for 6.48% population there is 10% reservation, we have to keep in mind that all SEBC criteria for these two groups are same, the only difference is based on religion.

Thus OBC Muslim quota differentiates on the basis of religion (declared unconstitutional by Supreme Court in Triloki Nath Tiku) and hence it should be suitably amended.

But there has been a welcome move by the WB government which has been imposition of two fold check on the OBC Muslim reservation:

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  Creamy layer exclusion – Once a person gets the benefit of quota, subsequent generation of the immediate family will not get benefit
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  Economic basis of exclusion – only those having an income of less than 4.5 lakhs per annum would be brought under the quota.

Both these factors are absent or irrelevant in OBC legislations in other states. Thus if the reservation is as proportionate to the population, is not discriminatory on basis of religion and is determined in a rational, objective and scientific criteria of economic, educational and social backwardness with the creamy layer exclusion then all of us should welcome such reservation, otherwise it would merely remain a vote catching stunt rather than be an affirmative action.