Whither Muslim quota

The Telangana State Legislature passed the new reservation act. The politically controversial and constitutionally questionable aspect of the Telangana Reservations Act is according 12 per cent reservations for Muslims.

As observed by Justice B Sudershan Reddy in T Muralidhar Rao v State of Andhra Pradesh (2010), “Non-Hindu religions like Islam, Christianity and Sikh do not recognise caste as such, but the existence of caste-like social stratification among the Muslims is well-recognised that in spite of egalitarian philosophy of Islam, which opposes all kinds of discriminations, almost all types of caste groups have emerged in the Muslims.

Supreme Court noted in M R Balaji v State of Mysore said that if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense known to Hindu society.

The apex court in Chitralekha v State of Mysore observed that the identification or classification of Backward Classes on the basis of occupation-cum-income, without reference to caste, is not bad.

The basic premise here is that if fishermen or a washer man or a barber goes to temple, he or she enjoys reservations. But, if they go to a masjid or a mosque, how can they be denied reservations. In case they are denied reservations only on the basis of religion, it negates the concept of religious freedom guaranteed by secular Indian Constitution.

The Andhra Pradesh High Court in T Muralidhar Rao v State of Andhra Pradesh (2010) held “Reservations for Muslims or sections/groups among them, in no manner militate against secularism, which is a part of the basic structure of the constitution. The concept of secularism is based on a benign neutrality to benefit all including religious groups and it seeks to advance "good" for all including religious groups.”

The religion, faith or belief of a person or group of persons is totally immaterial so far as the State action is concerned. The State cannot exclude from its consideration the demands, entitlements of any constitutional claimants on the ground of religion, faith or belief. Therefore Indian jurisprudence makes it clear that Muslims categorised as backward cannot be denied reservation benefits just because they are Muslims.

But, extending reservations for Muslims as a whole is unconstitutional. The Andhra Pradesh High Court in T Muralidhar Rao itself held, “…Whether a group, caste or class is entitled to the benefit of affirmative action does not depend upon religion, faith or worship.”

Religion cannot be the ground for either exclusion or inclusion from the constitutionally sanctioned protective discrimination and affirmative action in the form of reservations.

Though, the government calls it a measure for backward Muslims, covering entire population of Muslims in the state in the new quota formula, tantamount to according reservations on religion basis. Religion cannot be the basis for according reservations. Besides, political challenge, the new reservation act of Telangana in all likelihood is bound to face judicial road blocks.