History of religion-based reservations in India:

Why in news? In election season, India is debating fundamental constitutional questions around reservation.

• Can a secular country like India have religion-based reservation?
• Have Muslims ever been given reservation by reducing the quota for Scheduled Castes (SCs), Scheduled Tribes (STs), or Other Backward Classes (OBCs)?
• Does reservation for SCs that is limited to only certain religious denominations amount to reservation based on religion?

What the Indian Constitution says on religion-based reservations?

• As per the constitution of India, Equality refers to equal treatment for all, to equity, which ensures fairness and may require differential treatment or special measures for some groups.
• The Supreme Court has held that equality is a dynamic concept with many aspects and dimensions, and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits (E P Royappa vs State Of Tamil Nadu, 1973).
• The Constitution of 1949 dropped the word ‘minorities’ from Article 296 of the draft constitution (Article 335 of the present Constitution), but included Article 16(4) that enabled the state to make “any provision for …reservation…in favour of any backward class of citizens which…is not adequately represented in the services under the state”.
• The first constitutional amendment inserted Article 15(4), which empowered the state to make “any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”.
• Article 15 specifically prohibits the state from discriminating against citizens on grounds only of both religion and caste (along with sex, race, and place of birth). After the Supreme Court’s judgment in State of Kerala vs N M Thomas (1975), reservation is considered not an exception to the equality/ non-discrimination clauses of Articles 15(1) and 16(1), but as an extension of equality.
• The crucial word in Articles 15 and 16 is ‘only’ — which implies that if a religious, racial, or caste group constitutes a “weaker section” under Article 46, or constitutes a backward class, it would be entitled to special provisions for its advancement.

Mandal commission and other states’ Reservation Policy:

• The Mandal Commission, following the example set by several states, included a number of Muslim castes in the list of OBCs. The Supreme Court in Indra Sawhney (1992) laid down that any social group, whatever its mark of identity, if found to be backward under the same criteria as others, will be entitled to be treated as a backward class.

Kerala: Muslim sub-quota:

• Religion-based reservation was first introduced in 1936 in Travancore-Cochin In 1952, this was replaced by communal reservation. Muslims, who constituted 22% of the population, were included within the OBCs.
• After the state of Kerala was formed in 1956, all Muslims were included in one of eight sub-quota categories, and a sub-quota of 10% (now 12%) was created within the OBC quota.

Karnataka: JD(S) decision:

• The Third Backward Classes Commission of Karnataka headed by Justice O Chinnappa Reddy (1990) found, like the Havanur (1975) and Venkataswami (1983) Commissions, that Muslims fulfilled the requirements for being considered among the backward classes.
• In 1995, the Deve Gowda goverment implemented 4% Muslim reservation within the OBC quota. Thirty-six Muslim castes which are part of the central list of OBCs were included in the quota.

Tamil Nadu:

• The government provided within the 30% OBC quota, a sub-category of Muslims with 3.5% reservation.

Andhra Pradesh & Telangana:

• In 2004, based on a report by the Commissioner of Minority Welfare on the social, economic, and educational backwardness of Muslims, the government provided 5% reservation, treating the entire community as backward.

What courts have said?

• Based on M R Balaji vs State of Mysore (1962), the court noted that “Muslims or for that matter Christians and Sikhs etc., are not excluded for the purpose of conferring the benefits under Articles 15(4) or 16(4)”.
• In M R Balaji, the Supreme Court observed: “It is not unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward.
• That is why though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf.

In Indra Sawhney (1992), the Supreme Court held that “in a particular state, Muslim community as a whole may be found socially backward. (As a matter of fact, they are so treated in Karnataka as well as Kerala).