How do Muslims get reservations in India?

Umang Poddar

Against the backdrop of the Karnataka and Telangana Assembly elections this year, the Bharatiya Janata Party has attacked reservations given to Muslims. In March, the Karnataka BJP government scrapped the 4% Other Backward Classes quota given to Muslims in the state. Then, in April, Union Home Minister Amit Shah said that reservations to certain Muslim communities in Telangana were unconstitutional and that the BJP would remove this quota if it came to power.

The party’s main contention is that reservations cannot be given on the basis of religion. The scrapping of the Karnataka Muslim OBC reservation has been challenged before the Supreme Court. The state government has meanwhile stated that it will not make any appointments or admissions on the basis of the new reservation policy excluding Muslims till the next day of the hearing.

However, experts believe that it is not unconstitutional to grant reservations to all Muslim communities in a state, as long as it is backed by data on backwardness.

Status of reservations
Several Muslim communities get reservations in the Central OBC and several state OBC lists. According to a 2005 National Sample Survey Organisation survey, Muslim OBCs constitute around 41% of the total Muslim population.

While states like Kerala have OBC reservations for the entire Muslim community (8% in educational institutions and 10% in government jobs), states like Tamil Nadu provide reservations to close to 95% of Muslim communities. There are other states such as Bihar that have bifurcated OBCs into backward and most backward classes and most of the Muslim communities fall under the most backward category.

In Karnataka, out of the 32% of reservations carved out for OBCs in the state, a sub-category comprising 4% was reserved for all Muslims. The state struck that down and distributed the 4% among Vokkaligas and Lingayats, the dominant Hindu castes. As Scroll reported previously, this move was allegedly done to “appease the party’s Hindutva constituency” before the elections in May.

However, the BJP government has defended on the basis of its long-standing contention that an entire community cannot be granted reservation on the basis of their religion. Additionally, they have also submitted to the court that certain Muslim communities such as Pinjaras, Ladafs and Mansooris still get OBC reservations, as they got earlier. The Karnataka government has said that Muslims will still be eligible for reservations under the economically weaker sections category.

Can Muslims get reservations?
Presently, a proportion of Muslims are given reservations under the OBC category. Since this category of reservations are for “backward classes” instead of a religious or caste group, legal experts say that this reservation is justified.

“The Constitution says that OBC reservation may be given to backward classes,” said G Mohan Gopal legal academic, Supreme Court advocate and constitutional law expert. “A class is a distinct group of people and a religious group such as Muslims is therefore a class.”

He said that religious groups are not barred by the Constitution from being a class eligible for reservations, “including Muslims as a whole”.

According to him, what was required was that all classes have to meet the specified eligibility criteria.

The National Commission for Backward Classes has identified several broad indicators across social, economic, educational and political status of a community to determine its backwardness. This includes factors such as whether the class is considered socially backward in society, the number of children in that community who never attended school, and the average value of family assets.

Continued Gopal, “As long as there is data to show that these conditions are satisfied, any religious group, including Muslims are constitutionally eligible to get reservations.”

There are several reports that have said that the Muslim community are lagging behind in several social, educational and economic indicators. For instance, the 2006 Sachar Committee report noted that “the Muslim community as a whole is lagging behind Hindu-OBCs” and recommended different affirmative action methods for Muslims. Based on this report, the Kerala government in formed a committee in 2008 which noted that “Muslims in Kerala stand far behind than the other communities in the social, economic and educational fields” and recommended reservations in jobs and educational institutions for Muslims.

Further, OBC reservations exclude the “creamy layer” – members of backward classes who are better off socially, educationally or economically. “So the better-off individuals amongst the backward classes would not get OBC reservations,” added Gopal.

Dalit Muslims have also claimed that they should be given reservations under the Scheduled Caste category. However, the Centre has opposed this plea and a case is pending before the Supreme Court. Currently, they are included in the OBC category and, as a result, have to compete with communities that are often significantly more privileged than them.

Court judgements on Muslim reservations
Cases related to the reservations given to Muslims in Karnataka and Andhra Pradesh are pending before the Supreme Court. In 2005, the Andhra Pradesh High Court struck down the government’s decision to provide 5% reservation to Muslims in the state. It said that the commission formed by the state to evaluate the backwardness of Muslims was “vitiated by application of improper criteria, non-consideration of relevant factors and unscientific and unreasoned method of investigation enquiry”.

Later, in 2010, the state government introduced a 4% reservation for certain Muslim communities which was again struck down by the court for not conducting the survey recommending the reservations properly.

However, this was stayed by the Supreme Court and the case is currently pending before a five-judge bench.

This judgement has been quoted by the Karnataka government to justify removing the OBC reservations for Muslims in the state. “However, this judgement is based on facts peculiar to the case,” said Gopal, pointing out that the reservations were struck down for lack of adequate data. “It did not say that reservations for Muslims were prohibited by the Constitution.”

On the contrary, in 2004, the Andhra Pradesh High Court held that “Muslims as a group are entitled to affirmative action/social reservations within the constitutional dispensation, provided they are identified as socially and educationally backward class”. It further said that “providing social reservations to the Muslim community or sections or groups amongst them in no manner militate against secularism”.

EWS reservation
The Karnataka government has also said that Muslims will be eligible for reservation under the economically weaker sections category. “That is also a wrong statement,” said Gopal.

He said that the only requirements for EWS reservations are that beneficiaries should not be members of Scheduled Caste, Scheduled Tribes or Other Backward Classes and that their families should fall below a certain income and asset level.

It is by being excluded from the OBC category that Muslims would automatically fall within this category. “There is no provision to make any particular group, including Muslims, eligible for EWS,” added Gopal.

Further, he pointed that by excluding Muslims from backward classes the government is in effect saying that Muslims are a socially and educationally forward class. “But that is not true,” he said.

Umang Poddar is a journalist who writes at Scroll.in. This article was originally published in Scroll.in