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To provide quota to Muslims as community against social justice, secularism, Karnataka tells Supreme Court

By LawStreet News Network      28 April, 2023 04:50 PM      0 Comments
To provide quota to Muslims as community against social justice, secularism, Karnataka tells Supreme Court

NEW DELHI: The Karnataka government has told the Supreme Court that it took a conscious decision to discontinue the reservation on the sole basis of religion for Muslim community since it is unconstitutional and contrary to the mandate of Article 14 to 16 of the Constitution of India.

Providing reservation to the community as a whole would be against the principles of social justice and secularism, it contended.

"Merely because reservations have been provided in the past on the basis of religion, it is no ground to continue the same for perpetuity, more so when it is on the basis of an unconstitutional principle," it said.

The Karnataka government also pointed out 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.

"The power to classify a group of citizens as Socially and Educationally Backward Class (SEBC) has to be constitutionally exercised in accordance with the provisions of Articles 14, 15 and 16 of the Constitution. Assuming for the moment that any of the commissions had recommended for the inclusion of Muslims as Backward castes, the same does not denude the power of the State Government to take a decision in accordance with law," it said.

In a written response to the plea challenging the validity of its March 27 order, the state government said the power thereunder is a constitutionally conferred power conferred upon the State Government to provide for protection to the Backward Classes. The States powers under Article 16 has been discussed in Indira Sawhney case (1992 Mandal Commission).

"The exercise of power to provide for reservations emanate from Articles 15 and 16 and the same can be done by executive instructions which amounts to Law within the meaning of Article 13 of the Constitution," it said.

The reservation can be provided to the Socially and Educationally backward classes in society who have historically deprived and discriminated against. "The same cannot be equated with an entire religion," it said.

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

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, it added.

"Reservation solely on the basis of religion is also contrary to the principles of Social Justice. The concept of social justice aims to protect those who are deprived and discriminated against within the society. Including within the said ambit an entire religion would be an antithesis to the concept of social justice and the ethos of the Constitution. Therefore reservation cannot be extended to any community on the sole basis of religion," it said.

The provision of reservation on the basis of religion would also be contrary to the concept of secularism, besides being violative of right to equality and non discrimination on the basis of race, religion, caste, gender etc, it added.

The state government further said the issue of reservations has anyway undergone a radical shift with the introduction of reservation on the basis of economic criteria (EWS) by virtue of the 103rd Amendment. It is pertinent to state that the said amendment has been upheld by this Court in Janhit Abhiyan Vs Union of India, (2022). Therefore, the Muslim community suffers no prejudice as they can avail the benefit of EWS reservation which is 10%.

In the case of Andhra Pradesh, the Supreme Court permitted the reservation for only limited identifiable communities amongst Muslims and not the entire religion, it pointed out.

"This is a critical point of difference between Andhra Pradesh and Karnataka and the petitioners are misleading that this court has continued a purely religion-based reservation," it said.

The state government also said that the grant of reservations in a state and redistribution thereof is purely an executive function.

"The petitioners herein have sought to give a colour to the exercise in question which is completely baseless. 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.

"The present proceedings are misconceived, devoid of any merits and therefore, the present petition merits to be dismissed on these grounds alone," the state government said.

Opposing the grant of any interim relief, the state government also said the petitioners directly approached the Supreme Court without filing a plea before the High Court, even as its March 27 order was passed in persuance of the High Court's order on March 23.

"As far as the reservation solely on the basis of religion is concerned, it is humbly submitted that the same is not justified. It is stated that three Backward Classes Commission Report may be material in this respect," it further 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 L G Havanur. The said inclusion has thereafter been continued subsequently primarily on the ground of economic backwardness. It is pertinent to state that the constitutional scheme at that stage did not contemplate reservations to economically weaker sections, it said.

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