Understanding Constitutional Accommodation in the Context of India’s Muslims

Muslim sub-quotas within the OBC category in a handful of states have been a glimmer of hope.

Addressing a public rally during the Bharat Jodo Nyay Yatra in Jharkhand's Ranchi on 5 February, Indian National Congress leader Rahul Gandhi sparked a debate on the 50 per cent cap on reservations. “If the INDIA bloc comes to power, it will throw away the 50 per cent cap on reservations, ensuring Dalits, tribals, OBCs get their rights,” said Gandhi. Although he did not mention religious minority groups, Gandhi’s statement renewed the long-standing debate on the extension of reservation quotas to religious minority groups in legislative bodies, public employment, and educational institutions.

With the Supreme Court’s endorsement of the Centre's 10 per cent reservation for Economically Weaker Sections (EWS) in November 2022, it is clear that the upper limit of 50 per cent is not absolute, further substantiating the extension of the affirmative action quotas for India’s largest yet socially and economically backward religious minority group - Muslims. Notably, the extension of reservations to Muslims has been vehemently opposed, among other things, on the ground that the court has already put a ceiling of 50 per cent for quotas under the Constitution. 

Vast swathes of scholarship, as well as the government's reports, have batted for affirmative action, including quotas for Muslims to ensure their representation. Some government reports, for example, the one submitted by the National Commission for Religious and Linguistic Minorities in 2007, have proposed a separate reservation quota for the Muslim community apart from caste-based quotas under the Constitution. A similar proposal was put forth by the landmark 2006 Sachar Committee Report.

While it did not specifically recommend reservation quotas, the Report proposed affirmative action measures to be taken by the Government for the Muslim community. Yet, India’s constitutionally mandated affirmative action quotas continue to be limited to caste-based groups. 

Both Justice Ranganath Misra Committee and Sachar Committee have chronicled the systemic and systematic marginalisation of the Muslim community over several decades in the post-colonial Indian state. The Sachar Committee Report points out that the share of Muslim IPS officers is just roughly four per cent, IAS officers three per cent, and IFS officers less than two per cent. Importantly, the Gopal Singh Committee Report 1983 also projected almost the same picture of Muslim representation, indicating that nothing changed between 1983 and 2006. Terrifying to say that nothing much has changed since 2006. Presently, only 26 out of the total 545 MPs in Lok Sabha (Lower House of Parliament) are Muslims, and none from the ruling party, which has an absolute majority in the House.  

A Glimmer of Hope in the Form of Muslim Sub-quotas

Amidst this patently disturbing scenario, Muslim sub-quotas within the Other Backward Classes (OBC) category in a handful of states have been a glimmer of hope. After concerted demands from the Muslim community and subsequent recommendations of the second Backward Classes Commission in 1980, a modicum of Muslim caste groups were included in the OBC category.

However, as the representation of Muslims in all spheres remained critically poor, some states walked an extra mile by earmarking sub-quotas for the Muslim community within the larger OBC quota to increase its representation in educational institutions and public employment.

The states of Kerala and Andhra Pradesh provide the said sub-quotas. Karnataka had a similar sub-quota of four per cent for Muslims until it was scrapped early last year when the state was ruled by the Bharatiya Janata Party (BJP). Interestingly, the states of Bihar and Tamil Nadu have extended the benefit of reservation to almost the entire Muslim community, categorising them into backward and most backward groups. A similar framework exists in the state of West Bengal. Although a sub-quota for the Muslim community was attempted for the first time at the pan-India level by the UPA Government in 2011, it was scuttled by the judiciary, widening the chasm between social justice and secularism. 

The limited sub-quotas, as applicable in some states, are believed to have modestly helped the Muslim OBCs to level up in representation as they would otherwise find it difficult to compete with their Hindu counterparts. What is more, the extension of reservations to marginalised religious groups has also been opposed on the ground that it violates the principle of secularism, paradoxically echoed by the constitutional courts. When the truth is that a secular constitutional state needs to reassure the groups threatened by religion-based discrimination that it stands committed to their inclusion. 

Muslims and Economically Weaker Sections (EWS)

With the introduction of an additional 10 per cent reservation quota in the form of the Economically Weaker Section (EWS) by the Constitution (103rd Amendment) Act, 2019, it is argued that the Muslim community would also benefit from the said quota. This has significantly featured in the government’s defence during the initial hearings of petitions challenging Karnataka’s scrapping of the Muslim sub-quota of four per cent before the Supreme Court last year.

However, given the higher ceiling of economic criteria, which is eight lacs, under the EWS category, and the drastically poor economic condition of Muslims, it is anyone’s guess whether the Muslim community would be able to compete with their counterparts from the majority community.  

Religious minorities have enjoyed the benefits of affirmative action in colonial India. According to Theodore Wright in a paper ‘A New Demand for Muslim Reservation in India’ published in Asian Survey in 1997, “the British colonial authorities reserved seats for Muslims in legislatures in 1909, and in 1926 separate electorates, and a 25 per cent quota in civil services were provided to reflect their 24 per cent of the population.”

The question of the reservation of Muslims also prominently featured in the Constituent Assembly debates. “In the CAD meetings between December 1946 and August 1947, the reservation was seen as a possible solution to allay the fears and apprehensions of minorities,” writes Zoya Hasan in ‘Politics of Inclusion: Caste, Minorities, and Affirmative Action’. However, due to subsequent events, partition in particular, and stiff opposition from some members of the Constituent Assembly, the Muslim leadership had to trade off the demand for social rights and security with cultural and religious rights.  

With staggering levels of social and economic backwardness, the entire Muslim community should be treated as a backward ‘social group’ like any other social group. Accordingly, a separate quota should be allocated for the ‘social group’ as a whole regarding admissions to educational institutions, public employment, and political representation, subject to the creamy layer rule and the caste/class differentiation among Muslims. The exhaustive guidelines laid down by the Supreme Court of India with regard to the determination of “backward classes” in Indra Sawhney v Union of India and Others (1992) can serve as a guiding framework. At a time when some countries are deliberating on power-sharing arrangements to accommodate ethnic and religious minorities, reservations in favour of the Muslim community are the least a constitutional democracy could offer.

(Burhan Majid is a doctoral fellow at NALSAR University of Law, Hyderabad, working on the constitutional accommodation of religious minorities in India. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)