A counter-affidavit filed by the state government claims that a conscious decision was taken not to continue with the reservation on the sole basis of religion as it is unconstitutional and contrary to the mandate of Articles 14 to 16 of the Constitution of India.
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ON Tuesday, the Karnataka government filed a counter-affidavit in reply to the petition challenging the contentious government order (GO), dated March 27, that scrapped the 4 percent reservation quota for Muslims as part of the Other Backward Classes (OBC) category in education and public employment in the state. The GO granted an additional 2 percent of each of the freed-up reserved seats to the Vokkaligas and the Lingayats, both demographically, politically and economically dominant social groups within the state that were previously included under categories III(A) and III(B) of the reservation scheme.
On April 13, the Supreme Court Bench comprising Justices K.M. Joseph and B.V. Nagarathna heard the plea that challenged and prayed for stay on the GO. On a statement of assurance of Solicitor General of India Tushar Mehta, appearing on behalf of the Karnataka government that no steps would be taken in terms of appointments and admissions in pursuance of the GO, and that the previous notification of the OBC reservation quota that allowed reservation for Muslims would continue, the court has allowed adjournment of the matter in subsequent hearings.
The Bench will now hear the plea on May 9.
In its counter-affidavit, the state government has submitted that the petitioners have failed to prove the basic requirements for passing an order of stay. It prayed for the writ petition challenging the GO to be summarily rejected with costs.
Pending petitions at high court
Challenging the maintainability of the petition, the affidavit states the petitioners have failed to approach the high court before moving the Supreme Court. It stated that a petition challenging the GO before the Karnataka High Court was filed on March 30, and is pending since then.
Further, it points out that on December 27, 2022, a petition was filed at the high court seeking direction not to change the reservation list, and an order of status quo was passed by the high court on January 12. However, by an interim order dated March 23, the previous interim order of status quo was vacated, permitting the state government to take steps with regard to the reservation, pending the final outcome.
In view of the pending petitions, the government has prayed for the present petition at the Supreme Court to be dismissed.
Recommendations of commissions
Delving into the status of reservation, the state government claims that reservation solely on the basis of religion is unconstitutional and contrary to the mandate of Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 16 (equality of opportunity in matters of public employment) of the Constitution. It referred to three Karnataka Backward Classes Commission reports— the L.G. Havanur Karnataka Backward Classes Commission report of 1975, the T. Venkataswamy-led Second Backward Classes Commission report of 1986, and the Justice O. P. Chinnappa Reddy-led Backward Classes Commission report of 1990.
According to the affidavit, contrary to the recommendations of the first backward classes commission headed by former Karnataka Law Minister Havanur, the Muslim community was included in the OBC category in 1979 and their inclusion was continued on the ground of economic backwardness. However, it must be noted that the Havanur Commission report had actually recommended reservation of up to 6 percent for the Muslim community due to its socio-economic backwardness.
The state government has emphasised that the groups within the Muslim community who were found to be backward and mentioned in Group I of the previous reservation order, dated March 30, 2002, continue to enjoy the benefits of reservation.
Relying on the judgment of the Supreme Court in Indira Sawhney versus Union of India & Ors (1992), the Karnataka government has urged that the recommendations of the backward classes commissions for the inclusion of Muslims as backward classes do not denude the power of the state government, under Articles 15 and 16 of the Constitution, to take a decision in accordance with the law and provide for reservations.
The state government has submitted that the grant of reservations is purely an executive function dependent on the ground realities. “The issue with regards to which group should be treated as a backward class and what benefits should be available to them is the Constitutional duty of every state,” it said.
The counter-affidavit further states, “The State Government took a conscious decision to not continue with the reservation on the sole basis of religion as the same is unconstitutional and contrary to the mandate of Articles 14 to 16 of the Constitution of India.”
Reservation based on religion
According to the state government’s counter-affidavit, the first test to be determined is whether the State can provide for reservation in public employment and educational institutions on the basis of religion. The affidavit claimed that the provision of reservation in the past on the basis of religion, cannot be a ground for continuing the same for perpetuity
The affidavit opposes religion-based reservation on the ground that it is contrary to principles of social justice, which aim to protect those who are deprived and discriminated against within society. “The aim of reservation, as envisaged in the Constitution, is to promote social justice by providing affirmative action to those who have historically been marginalised and discriminated against in society,” it added.
According to the state government, reservation based on religion is founded on unconstitutional principles and stands in contravention of Articles 14, 15 and 16 which uphold various facets of the right to equality. Such reservation causes “over-classification under Article 14” and “the classification of the entire religion as backward is bereft of any rational basis”, the government reply submitted. It laid emphasis on Articles 25 to 30 (right to freedom of religion, and cultural and educational rights) of the Constitution, and stated that while the Articles confer several rights and safeguards upon religious minorities, they do not mandate the State to provide reservations only by virtue of belonging to religious minorities.
Referring to Dr B.R. Ambedkar’s speech during the passage of the first amendment to the draft Constitution, the affidavit states that Dr Ambedkar, in reference to the present Article 16(4), referred to the backward classes as a “collection of certain castes”. It urged, “The whole point thereunder being there were socially and educationally backward classes in society who have historically deprived and discriminated against. The same cannot be equated with an entire religion.”
The Karnataka government’s reply has further highlighted the 1980 report of the B.P. Mandal-led Socially and Educationally Backward Classes Commission, and claimed that the commission found that religion cannot be the sole basis for reservation. The counter-affidavit emphasises that the Muslim community is not granted reservation on the basis of religion as a whole in the Central reservation list. It further pointed out that reservation solely on the basis of religion is practised only in the states of Kerala and Karnataka.
Referring to the introduction of reservation on the basis of the criteria of Economically Weaker Section (EWS), the counter-affidavit has stressed that the Muslim community suffers no prejudice since they can avail the benefit of the 10 percent EWS reservation quota.
The state government’s reply highlights that the Supreme Court’s interim order, on March 25, 2010, allowed 4 percent reservation in Andhra Pradesh as per the Andhra Pradesh Reservation in favour of Socially and Educationally Backward Classes of Muslims Act, 2007 to continue upon 14 backward communities specified in the Schedule of the Act, while not granting the benefit to category number 15 of “other Muslim groups”.
Drawing parallels with the present issue, the affidavit underlines that reservation was previously granted to the Muslim community as a whole, whereas now, specified backward communities within the Muslim communities continue to enjoy the benefit of the reservation.
