Supreme Court allows Karnataka to file a reply on challenge to order scrapping separate reservations for Muslims

The time was granted on the assurance that no irreversible step will be taken till April 18. "Prima facie, the order appears to suggest that the foundation of the decision-making process is highly shaky and flawed," Justice Joseph remarked. 

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ON the Karnataka state government's assurance that no steps will be taken till April 18 in pursuance of the contentious government order (GO) that scrapped 4 percent reservation for Muslims under the Other Backward Classes (OBC) category, on Thursday, the Supreme Court granted it time to file reply till April 17.

The Bench, comprising Justices K.M. Joseph and B.V. Nagarathna, was hearing the plea to stay the order of the Karnataka government dated March 27, which reclassified the OBC category by scrapping the 4 percent reservation for Muslims under category II(B) and moving them to the Economically Weaker Sections (EWS) quota. Additionally, the Vokkaligas and the Lingayats (both demographically, politically and economically dominant social groups within the state), previously included under categories III(A) and III(B), were granted an additional 2 percent each of the freed up reserved seats, increasing their share in the OBC reservation pool.

The announcement of the GO was made a day after a division Bench of the Karnataka High Court vacated a January stay on the state government's order creating two new OBC sub-categories for the Lingayats and the Vokkaligas. The high court lifted the stay after the Solicitor General of India Tushar Mehta assured the court that the new OBC sub-quotas would not affect the existing 15 per cent quota for other OBCs.

The Supreme Court, on Thursday, posed two questions to the parties: what will be the consequence if the stay is not granted now, and what will happen if the stay is granted?

Appearing for the petitioners, Senior Advocate Dushyant Dave raised the concern that the GO was passed summarily, without any enquiry, empirical data or report to support it. Dave argued that the interim report of the Karnataka State Commission for Backward Classes, which was relied on by the state government to make the reclassification, expressly states that the newly created categories of II(C) and II(D), for the Vokkaligas and Lingayats, should not harm and change the reservation of backward categories I and II, consisting of the Muslim quota.

It was contended by Dave that the Karnataka High Court judgment relied on a judgment of the Andhra Pradesh High Court, which is not binding on Karnataka. Dave highlighted that the judgment relied upon has been stayed by the Supreme Court, and the stay continues till date. Through the stay, the Supreme Court expressly continued reservations for the Muslim community, he added.

Dave pointed out the alleged falsity in the statement of the GO that states that at the time the II(B) category was created and Muslims were classified as backward classes, there was neither any recommendation by any authority nor was there empirical data for granting them reservation. He pointed to the Government of Karnataka Resolution of April 1994, which was based on investigation and data, and under which the Muslims were granted reservations under category II(B). Such a resolution was amended from time to time in accordance with the directions of the Supreme Court, Dave contended. He also pointed out other reports of minority committees that justify the inclusion of Muslims under the OBC category.

On the effect of transferring the Muslim quota from category II(B) to EWS, Justice Joseph enquired whether the Muslim community will have to struggle for reservations for education and employment. In reply, Dave said that the validly conferred 4 percent reservation that was secured only for the Muslim community has been taken away. Senior Advocate Kapil Sibal, appearing on behalf of the petitioners, emphasised that Muslims have now been transferred to the general category and included in the forward class.

Dave questioned the need for the state government to change the quota and alleged that the change in the reservations is motivated due to the upcoming elections. Dave urged that reservations cannot be made for political reasons.

Karnataka is scheduled to go to polls from May 10 this year, upon which its Model Code of Conduct would come into force.

Justice Nagarathna raised a query on the consequence for the Vokkaligas and Lingayats, who are granted reservations under categories II(C) and II(D). Dave confirmed that since they were already entitled to benefits under categories III(A) and III(B), the only consequence is that their percentage of reservations increases, with the 4 percent reservation of Muslims distributed to them.

Senior Advocate Gopal Sankaranarayanan, for the petitioners, explained that with the passing of the GO, the reservation quota for the two largest communities in the state— the Vokkaligas and the Lingayats— has increased to 6 percent and 7 percent respectively. He argued that the exclusive 4 percent for Muslims is "completely gone", thereby including them with a bunch of other groups by transferring them to the EWS category. He raised the concern that under the EWS category, Muslims can only avail reservations on a family and individual basis, and not on a community basis anymore.

Sankaranarayanan apprised the court that according to a report, among all communities in Karnataka, Muslims have the highest rate of illiteracy, the lowest level of education and only 1.26 percent of them are employed in government services. According to the Supreme Court's judgment in Indira Sawhney versus Union of India and Others (1992), a commission report is required before the inclusion and exclusion of communities from reservations. There has been no commission report to justify the present GO, he highlighted.

On Justice Nagarathna's enquiry that "if the stay is granted on the GO, will it revive the status quo ante?" Dave and Sankaranarayanan responded that in the event the present GO is stayed, the notification issued in 2002 will continue, and argued that the reclassification should be, since the notification is modified, only to the effect of inclusion of categories II(C) and II(D).

Sibal questioned the logic behind Muslims being included in the general category now, without an study, when between 1994 to 2023 they were entitled to the reservation. He claimed that the entire GO is violative of Article 14  (equality before law) of the Constitution.

Senior Advocate Prof. Ravivarma Kumar, on behalf of the petitioners, emphasised that while the GO retains category II(A) at 15 percent, category II(B) shows zero percent, which means that Muslims are not entitled to reservations as a socially and educationally backward class.

On the direct consequence of the reclassification, Prof. Kumar explained that firstly, with the approaching academic year, applications are required to be made for admission to all educational institutions for entrance exams, including the Common Law Admission Test, the National Eligibility cum Entrance Test (Undergraduate) and the Common Entrance Test, among others. Muslims are not in a position to avail any benefit under Article 15(4) (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) of the Constitution, he argued.

Secondly, Prof. Kumar submitted that Muslims are discriminated against solely on the ground of religion, since all other religious minorities, for instance, Christians, Jains and Buddhists, continue to be included in the list of OBCs. This step is per se discriminatory and violative of Articles 15(1) and 16(2) (equality of opportunity in matters of public employment) of the Constitution. He argued that the power of the government to transfer Muslims from the OBC to the EWS category is not granted under Articles 15(6) or 16(6) (both provisions govern the EWS category) of the Constitution. Prof. Kumar also pointed out that the re-classification decision was not in supersession of the earlier order.

Mehta, appearing on behalf of the state government, sought time to file his reply. He claimed that the petitioners have not proven the need for an immediate stay and questioned the urgency of the stay. He alleged that the Karnataka Third Backward Classes Commission, which was chaired by Justice O. Chinnappa Ready, gave a report in 1990 on who should be treated as an OBC. It stated that Muslims are not socially but economically backward. Mehta argued that there cannot be religion-based reservations, and submitted that it is an error to grant reservations to the ones that are already included in a category.

On Mehta's plea to allow him to file a reply in a few days, Justice Nagarathna stated that in Karnataka, the academic year has come to an end and the season of admissions will begin. She also raised concerns about the implementation of the GO and granting reservations if the GO is not immediately stayed.

Justice Joseph addressed Mehta and remarked that as a student of law, it appears to him that the order of the state government is based on fallacious assumptions. He further remarked, "Prima facie, the order appears to suggest that the foundation of the decision-making process is highly shaky and flawed." Justice Nagarathna questioned the urgency to pass a GO based on an interim report and to not wait until a final report.

Senior Advocate Mukul Rohatgi, appearing for the leaders of Vokkaliga and Lingayat communities, argued that the present case is not only of cancellation of quota for Muslims but also the grant of quota to other communities. He submitted that the petitioners had failed to show urgency for stay on the GO, and further argued to be granted time to file a reply and supporting documents to defend the rights of the Vokkaliga and Lingayat communities.

Justice Joseph addressed Rohatgi and enquired whether the Bench should turn "a blind eye" and subscribe to the character of the GO that appears to be "in the teeth of commission reports". Justice Nagarathna stressed that while the Vokkaliga and Lingayat communities previously enjoyed reservation, the GO "completely knocked out" the 4 percent reservation for Muslims, and deprived them of benefits based on an interim report.

Since the Bench was inclined to grant a stay on the GO, on receiving instructions, Mehta assured the Court that "nothing irreversible" in terms of appointments and admission will take place in pursuance of the GO till April 18. The Bench consequently granted him time till April 17 to file a counter affidavit.

The matter is posted for hearing tomorrow.