Legal Analysis of Religion-Based Reservations in India: Pasmanda Muslims and the Primacy of Caste over Communal Differences

Authored by Abeer Sharma & Anureet Kaur, 2nd-year students at Rajiv Gandhi National University of Law, Patiala

Source: Countercurrents | Religion-Based Reservations in India: Pasmanda Muslims

Introduction

Vertical reservations in India are a complex and disputed issue deeply intertwined with the nation's history and social fabric. The system originated during British rule to address the socio-economic challenges faced by marginalised groups. Over time, these measures have progressed, with the Indian Constitution including provisions to support the advancement of Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs). However, there is significant controversy surrounding the idea of extending reservations based on religion rather than caste.

Considering the same, this blog examines the legal examination of religion-based reservations in India, focusing particularly on the Pasmanda Muslims, a marginalised subgroup within the Muslim community, through an analysis of the historical background, judicial rulings, and socio-political consequences. Further, the blog proposes reasons for showing the upper hand of caste-based reservations over religion-based reservations and addresses the constraints and difficulties linked to implementing religion-based reservations.

A Brief Historical Look at Religion-Based Reservations

The history of reservations in India dates back to the British colonial era. Following independence, the Indian Constitution in 1950 contained provisions for the advancement of socially and educationally disadvantaged classes. The notable achievements in this regard came with the establishment of the Mandal Commission in 1979 and the implementation of its recommendations by the Vishwanath Pratap Singh government in 1990.

The implementation of the caste-based reservation in India was concerned with the pervasive discrimination in Indian society based on caste. The rigid hierarchical structure of the Indian caste system led to the systematic marginalisation and exploitation of Scheduled Castes (SCs) and Scheduled Tribes (STs) in the society. Dr B.R. Ambedkar was a key figure in the movement to support the caste-based reservations for the people belonging to SC and ST communities to right historical wrongs and provide them with equal rights and opportunities.

Constituent Assembly Debates

The Constituent Assembly's debates further highlighted the general consensus regarding the significance of these actions, as seen by the incorporation of provisions such as Articles 15 and 16 into the Indian Constitution. These constitutional provisions permitted positive discrimination in favour of SCs, STs, and other underprivileged groups who faced historical discrimination. Though the Constitution didn’t provide any provision for the reservation based on religion. The decision to give caste precedence over religion in reservations was impacted by the pervasive and severe nature of discrimination faced by the people based on caste.

The religious minorities were not granted reservations as a result of the Constituent Assembly's recognition of this distinction. The Assembly concluded that religious reservations had traditionally led to communal divisions and had hampered the growth of the country. Moreover, the religious reservations were opposed by figures like Jawaharlal Nehru, who pointed out that they excluded minority groups and made it more difficult for them to integrate into society at large. The Constituent Assembly's stance against religiously motivated reservations was clear. Many Muslim leaders, such as Syed Ahmad Khan, acknowledged the polarising nature of such laws and based on the historical ramifications of such actions, they opposed any reservation for Muslims based only on their religion.

Establishment of Religion-Based Reservation in Andhra Pradesh

However, some states such as Kerala, Tamil Nadu and Karnataka applied the religion-based reservations since independence, but their legal fate was seen in Andhra Pradesh, where the Muslim Population constituted  9.5 % of the overall population, with certain groups of Muslims already included in the state OBC lists. However, there was a demand to include all Muslims under the OBC category and based on the same, a 5% OBC reservation for Muslims was introduced by the government in 2004 in accordance with Articles 15(4) and 16(4).

The Andhra Pradesh High Court struck down a 5% Muslim reservation, citing lack of consultation with the Backward Class Commission, exclusion of the creamy layer, and failure to meet criteria from M. Nagraj v. Union of India. Despite the Backward Class Commission recommending reservations for Muslims in 2005, the Supreme Court ordered a status quo in 2010, leaving the issue unresolved.

The Legal Relation Between the Religion and Reservation.

From a legal perspective, India’s complex system of affirmative action can be described as problematic because of the numerous interconnections between cultural ramifications, legal nuances, and constitutional mainstays. At the heart of this debate, is the question of what equality and secularism mean in the Indian constitution. Article 15 of the Constitution requires the State to refrain from discriminating against any person based on religion, race, caste, sex, or place of birth. Thus, emphasising socioeconomic status and merit alone, should determine an individual’s ability. In the case of Pasmanda Muslims, the historical discrimination which has been faced by them for centuries is against the basic tenets of equality and the same will be discussed in detail during the further article.

Moreover, landmark judicial interpretations have played a crucial role in determining the extent of reservations, especially concerning their compliance with constitutional mandates. The State of Madras v. Champakam Dorairajan (1951) marked a significant legal challenge against a government order in Madras that reserved seats in medical colleges based solely on religion. The Supreme Court, in its ruling, found that such reservations violated Article 15(1) of the Constitution as they led to discrimination based on religion.

The above judgement led to the insertion of the First Amendment in 1951 which clarified that reservations could be based on social and educational backwardness rather than solely on religion. Furthermore, in the judgement of Balaji v. State of Mysore, it was determined that the identification of backward classes should not be based solely on religion. stressed that while religion can be a relevant factor, it should not be the only criterion, and other socio-economic indicators must also be taken into account to ensure a comprehensive and fair assessment.

In a more recent judgement of Saurabh Chaudri vs. Union of India (2003), the Supreme Court emphasised that Articles 15 and 16 prohibit reservations on the basis of religion and any affirmative action must be rather based on the socio-economic factors. These judicial precedents highlight the constitutional provisions and emphasize that socio-economic backwardness, along with other factors, should be considered rather than religion to determine the backwardness of a community in society.

Reservations in India are governed by laws like the National Commission for Backward Classes Act, 1993, and the SC/ST Orders (Amendment) Act, 1956, which identify underrepresented classes based on socio-economic factors to ensure equitable affirmative action.

The Mandal Commission Report (1979) and the Indra Sawhney case (1992) laid stress on expanding reservations based on socio-economic disadvantages rather than religious identity, making reservation policies converge with constitutional ideals of equality and secularism.

The Case Study of Pasanda Muslims Depicting Pragmatic Limitations under Religion-Based Reservation

The previous heads provided a general overview of religion-based reservations while showing how they fall short under the umbrella term of discrimination as ascribed to caste-based discrimination. Now to highlight the pragmatic limitations under religion-based reservations, the specific case study of Pasmanda Muslims can be taken into consideration. The term ‘Pasmanda’, generally refers to the people who are marginalised or discriminated under the Muslim community. It mainly includes communities like Ajlaf and Arzal, who form a major chunk (around 85 percent) of the Muslim population.

The Pasmanda Muslims form one of the most discriminated communities under the Muslim religion. The reasons behind the same include the ancestry of Pasmandas, who were mainly converts from Hinduism belonging to the Dalit caste, who had changed their religion to bypass the oppression. However, even after conversion, they dealt with the same continuous discrimination.

The Pasmanda Muslim's status quo depicts the inherent limitations under the adoption of religion-based reservations as Pasmanda Muslims are discriminated by their own Muslim counterparts, showing the basis of discrimination related to their previous caste identity instead of their religious identity where the former overpowers the latter and the same concurs with the socio-psychological study of Sankaran, Sekerdej, and Hecker, who described caste as a fundamental social identity that shapes social cognition and behaviour. This differs from religion because, unlike religion, which can be chosen or converted during one’s lifetime, caste is assigned based on birth and it cannot just be changed by changing one’s religion or providing reservation based on religion.

Further, the discrimination faced by the Pasmanda can be better understood through the interpretation of terminologies like ‘discrimination’ and ‘difference’ which have a wide distinction in the context of Pasmanda Muslims.

For instance, when communal violence is observed between a group of Pasmanda Muslims and another religious community, the psychological emotions of violence and vindictiveness are created. However, when discrimination is seen between higher-caste Muslims and Pasmanda Muslims, the psychological emotions of untouchability and marginalization are created within the Pasmanda Muslims.

This elucidates how the discrimination faced by the Pasmanda Muslims is grounded in their caste and not in their status as an overall Muslim. Thus, providing religious reservations based on the assumption that Pasmanda Muslims are part of the Muslim Community, can only complicate the prevailing reservation structure in society, without catering to the main reason behind the persistent discrimination among various religions.

The Limitations of Religion-Based Reservations: Social, Political Constraints, and Global Perspectives

Religion-based reservation faces challenges, especially for Pasmanda Muslims. This section explores its drawbacks, citing examples from other countries and their outcomes.

Social Constraints on Religion-Based Reservations

Religion-based reservations face various societal constraints, primarily due to the complication of existing social and reservation structures. Currently, caste-based reservations have caused significant divisions within society, where beneficiaries demand its continuous implementation and their counterparts demand its removal. Additionally, 103rd Constitutional Amendment introduced EWS reservations, while several states enacted laws breaching the limit of Indira Sawhney Judgment.

The existential combination of these reservations creates a complex reservation mechanism within society. Furthermore, adding religion-based reservations can have negative consequences, like an increase in communal violence and further deterioration of the already risky meritocratic system in society.

Another social constraint is the creation of differences among equally backward communities. For instance, a Dalit Sikh may benefit from both caste and religion-based reservations, while a Dalit Hindu with similar disadvantages may only access caste-based reservations.

Political Constraints on Religion-Based Reservation

Religion-based reservations face significant political constraints. These policies are one of the crucial components of Indian politics, where parties and governments strive towards maintenance of equilibrium in reservations, to satisfy their voter base. Introducing religion-based reservations could disrupt this balance. One such political constraint is the communalization of educational institutions, whereby introducing religion-based reservations in academic institutions can lead to increased religious segregation and communal tensions.

This communalisation can also have harmful effects on the sense of unity among students and staff, thus creating an environment where religious identity may take precedence over merit. The establishment of this whole structure may go against the secular principles of India where equal treatment of all religions is required from the state with clear demarcation between the two.

Religion-based reservations risk fueling vote bank politics, allowing parties to favor politically aligned groups for electoral gains. This may increase corruption, inequality, and shift focus from addressing discrimination to serving political self-interest.

Global Perspectives on Religion-Based Reservation

The discourse on religion-based reservation extends beyond India, with cases in other countries like Sri Lanka and Malaysia, where religion-based reservation was implemented and faced significant repercussions over time.

Before the 1970s in Sri Lanka, the GCE A-Level exam disadvantaged Tamils due to its English medium and Sinhalese-focused curriculum, leading to measures like the 1971 Standardization Policy and district quotas.

However, these policies were perceived by the Sinhalese majority as unfair, creating resentment between the two religious groups and fueling the rise of Sinhalese nationalism and Tamil separatism. Further, scholars argue that affirmative policies aimed at addressing historical inequalities ultimately backfired on the state's social structure, where the gain of one group parallelly caused loss for another, leading to ethnopolitical mobilization and undermining democratic institutions.

In Malaysia, the Malays (predominantly Muslims) were in the significant majority, while the Chinese and Hindus were in the minority. The New Economic Policy (NEP) was introduced in 1971 to address the income inequalities between these groups. Further, NEP quotas were introduced for Malays in Public Universities, government job, and business ownership to improve their socioeconomic status.

However, these quotas were perceived by the Chinese and Hindus as discriminatory and caused ethnic tensions between them, Hence, these global perspectives showcase how biased government policies based on religion can cause disenfranchisement among various communities, ultimately affecting national unity.

Conclusion

The Pasmanda Muslims' perspective on religion-based reservations in India sheds light on the complexities and potential drawbacks of this policy, especially in the context of historical and legal precedents. These precedents illustrate that caste-based discrimination has been more deeply ingrained in Indian society than discrimination based on religion. The situation of Pasmanda Muslims demonstrates that caste hierarchies and social stratification persist even within religious communities, highlighting the limitations of religion-based reservations in addressing the underlying causes of social inequality.

Thus, the legal and socio-political limitations surrounding religion-based reservations and global perspectives on similar policies indicate that such measures could potentially worsen communal tensions. Therefore, the authors are of the opinion that the emphasis should be on socio-economic factors to guarantee that affirmative action helps those in need, irrespective of their religious background. In this manner we will be able to establish a society that is inclusive and fair, transcending caste and religious divisions.