A seven-judge bench of the Andhra Pradesh High Court passed a historic judgement last week on the constitutional vice of religion-based reservations. This is the third time that the High Court has declared religion-based reservation as violative of the constitutional prohibition of discrimination based on religion in Article 15(1) and 16(2).

In 2004, a five-judge bench of the High Court struck down a Government Order providing five percent reservation for members of the Muslim religion since the Government failed to comply with the condition precedent of consultation with the Backward Class Commission, a statutory body whose job is to investigate backwardness of any proposed group.

The Government then referred the issue to the Backward Class Commission and, based on its recommendations, the State issued an Ordinance providing five percent reservations for the entire Muslim religion. A five-judge bench of the High Court struck down the Ordinance on the ground that the entire Muslim religion cannot be treated as a homogenous class. The majority judgement of Justice VVS Rao held that a legislation intended to benefit a class of people who belong only to Muslim community is violative of Article 15(1) and 16(2). The Court ruled that State failed to conduct a scientific investigation that showed that the entire Muslim religion is a backward class. The Court also ruled that the 5 percent fell foul of the fifty percent outer limit prescribed by the Supreme Court in Indira Sawhney.  In appeal, the Supreme Court did not stay the judgement and referred the issue to a Constitution Bench which is still pending.

After this judgement, the State sought to rectify the constitutional vice by issuing an Ordinance that confined the reservation to 4 percent and the reservation was given to certain groups within the Muslim religion and excluded Muslim groups who were never known to reside in AP. The Ordinance provided a residual category of “other muslim groups” who can avail the benefit of reservations.

But it failed to rectify the primary constitutional vice of religion-based discrimination. The Ordinance provided reservation only to Muslim groups. In Andhra Pradesh, Backward Classes are divided into four categories based on the extent of backwardness, but the Government in the Ordinance created a new category exclusively reserved for Muslim backward groups. Although several groups had made a representation to be designated as a backward class including other minority communities like Sikhs and Christians, the State chose to provide reservation only for groups within the Muslim religion.

The Court held that the entire Ordinance was religion specific since it focussed only on the Muslim community. Chief Justice Anil Dave in his majority judgement held that the reservation to the residual category provided an incentive to conversion since any person who subscribes to the faith of Islam would be a Muslim. He held that it was “subversive of the spirit of secularism” and it would lead to unscrupulous people embracing Islam to avail the benefit of reservation.

The Supreme Court has consistently held that the power to provide for reservations for backward classes under Article 15 and 16 is an enabling power, but if the State is exercising the power of providing reservations for designated backward classes, it has to demonstrate the existence of backwardness and inadequacy of representation of the backward classes in public services. These are constitutional condition precedents that have to be satisfied by the State.  Following this norm, Justice Meena Kumari in her concurring judgement held that the material collected by the Backward Class Commission is “not sufficient for the Government to come to the conclusion that specific classes of Muslims can be classified as a backward class.”  

All three judgements of the High Court are significant for fleshing out the constitutionally compatible norms for identification of backward classes. Any exercise of identification of backward classes has to be preceded by a scientific investigation of backwardness. The identifying authority has to lay down relevant criteria for assessing social and educational backwardness. This should be followed by an empirical investigation that considers all sections of the society before designating a group as a backward class.

Does the High Court ruling imply that groups within Muslims cannot be designated as a “backward class” and avail the benefit of reservation? Certainly not. If an investigation of backwardness of all sections of society reveals that certain groups among the Muslim religion are indeed backward, there is no prohibition in designating them as a backward class. Nowhere is this more evident than in Andhra Pradesh itself where the Supreme Court upheld inclusion of certain Muslim groups in the backward class list when the investigation extended to all classes of the society. But if the investigation of backwardness is confined exclusively to one religion, it will fall foul of the constitutional prohibition of discrimination based on religion. 

It is constitutionally permissible to include a religious group within a backward class list, but it is constitutionally impermissible to make religion as the basis for the identification of backward classes.

Vivek Reddy is a lawyer practicing before the Andhra Pradesh High Court and was counsel appearing before the seven-judge bench in the High Court. A version of this column appeared in the New Indian Express on February 15, 2010.

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