Scrapping 4% Muslim quota before polls immaterial, reservation cannot be on the basis of religion: Karnataka to Supreme Court

Reservation on the basis of religion is not permissible, the State of Karnataka told the Supreme Court on Tuesday while defending its decision to scrap the 4 percent reservation for Muslims in the State under the Other Backward Classes (OBC) category ahead of the State's assembly elections [L Ghulam Rasool vs State of Karnataka]..In an affidavit filed before the top court, the Karnataka government said that the timing of the decision is "immaterial" since reservation on the basis of religion is unconstitutional."Timing of the decision etc are immaterial without the Petitioners clearly demonstrating that the reservation on the basis of religion is constitutional and permissible," the State submitted. .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, it was further contended.Pertinently, it was submitted that the concept of social justice aims to protect those who are deprived and discriminated against within the society and including within the said ambit an entire religion would be an antithesis to the concept of social justice and the ethos of the Constitution.Deciding which group belongs to backward class is the purely an executive function, it was further submitted."The issue with regards to which group should be treated as backward class and what benefits should be available to them is the Constitutional duty of every State," affidavit said..The affidavit was filed in response to a challenge to the Karnataka government move to scrap the 4 per cent reservation for Muslims in the State.As per the government order, the Muslim community will be now eligible for reservation under the 10 percent Economically Weaker Sections (EWS) category. The earlier 4 percent is now to be distributed equally among the Veerashaiva-Lingayats and Vokkaligas.A bench of Justices KM Joseph and BV Nagarathna is hearing the challenge to the move.The bench had, earlier this month, questioned the rationale behind the same. It had orally observed that the government had relied on an interim report rather than a final report to come to its decision."This government order is based on completely fallacious assumptions...prima facie the order passed appears to suggest that the foundation of your decision makng is shaky," Justice Joseph had remarked.The Court, however, did not issue a stay on the assurance of Solicitor General Tushar Mehta, appearing for the Karnataka government, that no appointments or admissions will be made pursuant to the government order in question till the next date of hearing..State of Karnataka in its affidavit underscored that "there is no reservation given to Muslim community on the basis of religion as a whole in the Central List.".It was contended that even throughout the country, except the State of Kerala, there is no State that provides reservation for the Muslim community as a whole. "There are various communities from the Muslim religion who are included in the SEBC which also continues to be the case in Karnataka. As such, the same in itself shows that the reservation solely on the basis of religion is not the practice followed anywhere in the country except Kerala and in the State of Karnataka, till recently," the affidavit stated.