No reservation based on religion, asserts PM: What does the Constitution say?

Some Indian states have quotas for backward Muslims. PTI (Representational Image)

Reservations and the Constitution are being raked up by political parties as India holds the world’s largest electoral exercise. Polling is underway for the third phase of the Lok Sabha elections on Tuesday (7 May).

In the run-up to Phase 3, the Bharatiya Janata Party (BJP) and the Congress leaders spoke about reservations and the Constitution of India. In a recent interview with Times Now, Prime Minister Narendra Modi said religion cannot be the basis of granting reservations. At an election rally in Telangana’s Hyderabad last month, the PM said that he would not let Congress introduce “religion-based reservation to Muslims till I am alive”.

“As long as Modi is alive, I will not let reservations of Dalits, Adivasis, OBCs (Other Backward Classes) to be given to Muslims on the basis of religion,” he said previously.

What is going on? What does the Constitution say about religion-based reservations? Do Muslims enjoy quotas in any state? We explain.

Reservation enters poll talk

PM Modi has been alleging at his rallies that the Congress will “rob” the quota for Scheduled Castes (SCs), Scheduled Tribes (STs), and OBCs and “give it to Muslims”.

Speaking to Times Now, he said, “I have never said that Muslims won’t get reservations. All I am saying is that religion cannot be the basis of providing reservation. The poor in the country include all Hindus, Christians, and Parsis; all should get the benefits of reservations.”

PM Modi claimed in Uttar Pradesh’s Agra last month, “The Congress is determined to steal from the OBC quota to provide reservation based on religion.”

#WATCH | Addressing a public gathering in Agra, Uttar Pradesh, Prime Minister Narendra Modi says, “It was clear after Independence that reservation cannot be given based on religion…Congress is such a party which insults Baba Saheb Ambedkar daily, insults the Constitution and… pic.twitter.com/yqRbwXvxzo

— ANI (@ANI) April 25, 2024

Last month, Union Home Minister Amit Shah said in Assam that the BJP deems reservation based on religion as “unconstitutional”. He also vowed to end quota “based on religion” in Karnataka and Andhra Pradesh if the BJP is voted to power, reported ANI.

Congress brings up reservation

The Congress has been claiming that the BJP would “throw away” the Constitution which granted rights to the poor, Dalits, STs and other backward classes if it comes back to power.

Senior Congress leader Jairam Ramesh has alleged that the “real intention” behind BJP’s “400 paar” slogan is to gain power to change the Constitution, reported Indian Express.

The Congress has also hit out at the BJP and the PM for targeting reservations provided to some Muslim castes in Karnataka.

On Sunday (5 May), Ramesh shared a video of Modi from 2022 speaking about reservations for Muslims in Gujarat under the OBC category.

“In my Gujarat, in the Muslim community, there are 70 castes which are categorised as OBC. In my Gujarat, they get benefits in OBC,” the PM had said at the time, as per PTI.

Constitution and quotas

The Constitution of India grants reservation to SCs, STs and OBCs in government jobs and educational institutions.

Article 16 of the Constitution deals with equality. It states, “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”

Not just equal treatment for all, the Constitution also ensures equity, which “ensures fairness and may require differential treatment or special measures for some groups”, Professor Faizan Mustafa, Vice-Chancellor of Chanakya National Law University, Patna, wrote for Indian Express.

In this vein, Article 16(4) allows the state to make “any provision for the reservation of appointments or posts in favor of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the state.”

Article 15 of the Constitution says that the state shall not “discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

The first constitutional amendment included Article 15(4) which empowers 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”.

As Professor Mustafa wrote in his Indian Express piece, the key word in both these Articles 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.”

Does any state have religion-based quota?

In the 1992 Indra Sawhney verdict, the Supreme Court said that any social group, if ascertained to be backward per the same rules as others, will get the same treatment as a backward class, as per the Indian Express article.

The apex court observed in the judgement 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…)”.

As per Mustafa’s article, the religion-based reservation was first brought in 1936 in Travancore-Cochin state. After the state of Kerala was formed in 1956, all Muslims were included in one of eight sub-quota categories. A 10 per cent sub-quota was also created within the OBC quota at the time, which currently stands at 12 per cent.

In Karnataka, the government led by the then Chief Minister HD Deve Gowda, introduced a 4 per cent reservation for Muslims within the OBC quota in 1995. Under this, 36 Muslim castes in the southern state are eligible for reservation.

M Karunanidhi, the then Tamil Nadu CM, imposed a 3.5 per cent reservation each for Muslims and Christians, carved out from the 30 per cent reservation for OBCs in the state, in 2007. The provision did not include upper-caste Muslims. The quota for Christian castes was dropped after the objection by Christians themselves, noted Indian Express.

Muslims enjoy a 4 per cent quota under the OBC category in Telangana, the state which was carved out of Andhra Pradesh in 2014. The K Chandrashekar Rao government passed a law in 2017 to increase the quota to 12 per cent for OBC Muslims. It then sent the Bill to the BJP-led Central government for approval and inclusion in the Ninth Schedule but it was turned down, with the Centre saying it cannot allow for religion-based reservations.

Muslim quota in Andhra Pradesh has had a contentious history. While the government made efforts to impose religion-based reservations several times, it was struck down by the High Court.

In 2007, the Congress government passed a law providing 4 per cent reservations to 14 categories of poor Muslims, noted Newslaundry. However, the AP High Court struck it down, stating it violated Article 14.

The AP government moved the Supreme Court, which allowed the Muslim quota to continue until a constitutional bench took a decision. To date, the matter remains pending before the apex court.

Interestingly, the BJP’s ally in Andhra Pradesh, Telugu Desam Party (TDP) national president N Chandrababu Naidu has promised to preserve the 4 per cent reservations to Muslims under the OBC category if the TDP-JSP-BJP alliance comes to power in the state.

With inputs from agencies