Quota order on hold, Karnataka tells Supreme Court backward Muslims not hit

The state government, however, filed the affidavit later in the evening, explaining that its March 30, 2002 GO provided reservation to seven backward Muslim communities in Category I and to the entire Muslim community in Category II (B), and it was only the latter that had been scrapped.

“In contradistinction to the backward castes/ classes who were Muslims who were provided reservation in Category I, the entire religion has been added in Category II B,” the affidavit said. “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 Article 14 to 16 of the Constitution of India… It is pertinent to note that the groups within the Muslim community who were found to be backward and found mention in Group I of the 2002 reservation order continue to enjoy the benefits of reservation,” it said.

The state said the GO in March was passed pursuant to the orders passed by the High Court in a 2022 writ petition which sought a direction not to change the 2002 reservation list. In its order on January 12, 2023, the HC granted status quo. But on March 23, it permitted “the government to take steps with regard to reservation”.

The affidavit said “the initial inclusion of Muslim community into the category of other backward classes in 1979 was contrary to the recommendations of the first backward class commission headed by Shri L G Havanur”. This, it said, was continued subsequently “primarily on the ground of economic backwardness” although “the constitutional scheme at that stage did not contemplate reservations to economically weaker sections”.

The state said the petitioners have “sought to give a colour to the exercise in question which is completely baseless” and added that “the timing of the decision etc are immaterial without the petitioners clearly demonstrating that the reservation on the basis of religion is constitutional and permissible”.

It said “merely because reservations have been provided in the past on the basis of religion, the same is no ground for continuing the same for perpetuity, more so when the same is on the basis of an unconstitutional principle”.

The affidavit said that B R Ambedkar had referred to backward classes as a “collection of certain castes”, “the whole point thereunder being there were socially and educationally backward classes in society who have historically (been) deprived and discriminated against. The same cannot be equated with an entire religion”. The Mandal Commission “clearly found” that religion could not be the sole basis for reservation, the state said, adding that “the rationale behind the aforesaid report is that the entire religion cannot be treated as a monolithic entity for the purposes of reservation”.

It “is verily believed that there is no reservation given to Muslims on the basis of religion as a whole in the Central List. Even throughout the country, it is believed verily, except (the) State of Kerala, there is no state that provides for reservation for the Muslim community as a whole,” it said.

Reservation solely on the basis of religion is also contrary to the principles of social justice, the state said, and pointed out that it would also be contrary to the concept of secularism. The state government also pointed out that the question of religion-based reservation is pending before a Constitution Bench of the SC.

Earlier in the day, as the matter came up before a Bench of Justices K M Joseph and B V Nagarathna, Solicitor General Tushar Mehta requested that the matter be taken up on May 9, while Senior Advocate Dushyant Dave opposed it. Granting the adjournment, the court recorded Mehta’s statement that the earlier assurance that “no appointment or admission is going to be made… in pursuance of the GO” would continue.

Taking up the plea on April 12, the court had said that a reading of the GO “appears to suggest that prima facie… the foundation of its decision-making process is highly shaky and flawed”.