Religious Reservation: Fraud On The Constitution

The Constitution of India, while not blind to historical injustices, is explicitly cautious about religion-based state action. Articles 15(4) and 16(4) empower the state to make special provisions for socially and educationally backward classes, but not explicitly on religious grounds.

To that end, affirmative action must be guided by backwardness, not identity. Yet, in the case of this 4% quota, the basis appears to be religion first, with backwardness presumed rather than proven. This opens the door to a key legal question: Can a religion be a proxy for backwardness?

The Constituent Assembly Debates

The purpose of introduction of Rights under Articles 25-30 is to create an environment where there is no discrimination, where ultimately the need of introducing these rights goes away. The constitutional ideal under the said provisions is to create conditions where there remains no necessity to shield or protect rights of a minority or majority - rather an amelioration of all.

This has been the position consistently in the Constituent Assembly, as well as been reiterated by the Hon’ble Supreme Court in its judgments. The objectives of the provisions enshrined in Articles 25 to 30 of the Constitution must be appreciated in its true spirit. In understanding its true purport, therefore it is essential to refer to what Sardar Patel and Babasaheb Ambedkar, the two luminaries and founders of the Constitution thought.

While moving the resolution proposing the Draft Constitution, Babasaheb Ambedkar submitted to the Assembly that:

“The Draft Constitution is also criticised because of the safeguards it provides for minorities. In this, the Drafting Committee has no responsibility. It follows the decisions of the Constituent Assembly. Speaking for myself, I have no doubt that the Constituent Assembly has done wisely in providing such safeguards for minorities as it has done. In this country both the minorities and the majorities have followed a wrong path. It is wrong for the majority to deny the existence of minorities. It is equally wrong for the minorities to perpetuate themselves. A solution must be found which will serve a double purpose. It must recognise the existence of the minorities to start with. It must also be such that it will enable majorities and minorities to merge someday into one. The solution proposed by the Constituent Assembly is to be welcomed because it is a solution which serves this twofold purpose. To diehards who have developed a kind of fanaticism against minority protection I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State. The history of Europe bears ample and appalling testimony to this fact. The other is that the minorities in India have agreed to place their existence in the hands of the majority. In the history of negotiations for preventing the partition of Ireland, Redmond said to Carson “ask for any safeguard you like for the Protestant minority but let us have a United Ireland”. Carson's reply was “Damn your safeguards, we don't want to be ruled by you.” No minority in India has taken this stand. They have loyally accepted the rule of the majority which is basically a communal majority and not a political majority. It is for the majority to realise its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon this habit of the majority. The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish.”

(Constituent Assembly Debates, Thursday, 4-11-1948, at p. 39.)

While moving the Report of the Advisory Committee on Minorities, Sardar Patel said:

“… Now our object is, or the object of this House should be, as soon as possible and as rapidly as possible to drop these classifications and differences and bring all to a level of equality. Therefore, although temporarily we may recognise this it is up to the majority community to create by its generosity a sense of confidence in the minorities; and so also it will be the duty of the minority communities to forget the past and to reflect on what the country has suffered due to the sense of fairness which the foreigner thought was necessary to keep the balance between community and community. This has created class and communal divisions and sub-divisions, which in their sense of fairness, they thought fit to create, apart from attributing any motives. We on our part, taking this responsibility of laying the foundations of a free India which shall be and should be our endeavour both of the majority—largely of the majority—and also of the minority community, have to rise to the situation that is demanded from all of us, and create an atmosphere in which the sooner these classifications disappear the better.”

(Constituent Assembly Debates, Wednesday, 25-5-1949 at pp. 271-72.)

Having referred to the above, it is evident that what was ultimately intended by introduction of protection for minorities was not a perpetuation of minorities, but rather an amelioration and amalgamation within the national stream. The object is thus to protect and promote Unity in Diversity. Not only this, but these thoughts have also been echoed in the landmark judgment of this Hon’ble Court in Bal Patil v. Union of India, (2005) 6 SCC 690 wherein while discussing why minority religious rights had been included in the Constitution and the history of minority rights in India, for adjudicating the claims for minority status of a religious group, speaking through Dharmadhikari, J. has observed that:

“33. We have traced the history of India and its struggle for independence to show how the concept of minority developed prior to and at the time of framing of the Constitution and later in the course of its working. History tells us that there were certain religious communities in India who were required to be given full assurance of protection of their religious and cultural rights. India is a country of people with the largest number of religions and languages living together and forming a nation. Such diversity of religions, culture and way of life is not to be found in any part of the world. John Stuart Mill described India as “a world placed at closed quarters”. India is a world in miniature. The group of Articles 25 to 30 of the Constitution, as the historical background of partition of India shows, was only to give a guarantee of security to the identified minorities and thus to maintain the integrity of the country. It was not in the contemplation of the framers of the Constitution to add to the list of religious minorities. The Constitution through all its organs is committed to protect religious, cultural and educational rights of all. Articles 25 to 30 guarantee cultural and religious freedoms to both majority and minority groups. Ideal of a democratic society, which has adopted right to equality as its fundamental creed, should be elimination of majority and minority and so-called forward and backward classes. The Constitution has accepted one common citizenship for every Indian regardless of his religion, language, culture or faith. The only qualification for citizenship is a person's birth in India. We have to develop such enlightened citizenship where each citizen of whatever religion or language is more concerned about his duties and responsibilities to protect rights of the other group than asserting his own rights. The constitutional goal is to develop citizenship in which everyone enjoys full fundamental freedoms of religion, faith and worship and no one is apprehensive of encroachment of his rights by others in minority or majority.

34. The constitutional ideal, which can be gathered from the group of articles in the Constitution under the chapters of fundamental rights and fundamental duties, is to create social conditions where there remains no necessity to shield or protect rights of a minority or majority.

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36. The Commission instead of encouraging claims from different communities for being added to the list of notified minorities under the Act, should suggest ways and means to help to create social conditions where the list of notified minorities is gradually reduced and done away with altogether.

37. These concluding observations were required after the eleven-Judge Bench in T.M.A. Pai Foundation case [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481] held that claims of minorities on both linguistic and religious basis would be each State as a unit. The country has already been reorganised in the year 1956 under the States Reorganisation Act on the basis of language. Differential treatments to linguistic minorities based on language within the State is understandable but if the same concept for minorities on the basis of religion is encouraged, the whole country, which is already under class and social conflicts due to various divisive forces, will further face division on the basis of religious diversities. Such claims to minority status based on religion would increase in the fond hope of various sections of people getting special protections, privileges and treatment as part of the constitutional guarantee. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy. We should guard against making our country akin to a theocratic State based on multinationalism. Our concept of secularism, to put it in a nutshell, is that the “State” will have no religion. The States will treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual rights of religion, faith and worship.”

What do the Constitutional Courts say?

Over the decades, the courts have reinforced that social and educational disadvantage must be the cornerstone of any reservation policy. In Balaji v. State of Mysore (1963), the Supreme Court cautioned against overbreadth in identifying backward classes, striking down excessive and unsubstantiated claims of backwardness. The Karnataka Bill, however, doesn't make this distinction. It grants reservation based on the umbrella identity of “Muslims,” treating an entire religion as a backward class. This approach in all likelihood will not survive judicial scrutiny.

In the case of Triloki Nath Tika v. State of Jammu & Kashmir 1968 SCC OnLine SC 115, the Hon’ble Supreme Court held that Article 16 in the first instance by clause (2) prohibits discrimination on the ground, inter alia, of religion, race, caste, place of birth, residence and permits an exception to be made in the matter of reservation in favour of backward classes of citizens. The expression “backward class” is not used as synonymous with “backward caste” or “backward community”. The members of an entire caste or community may in the social, economic and educational scale of values at a given time be backward and may on that account be treated as a backward class, but that is not because they are members of a caste or community, but because they form a class. In its ordinary connotation the expression “class” means a homogeneous section of the people grouped together because of certain likenesses or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. But for the purpose of Article 16(4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution.

In the case of State of Uttar Pradesh v. Pradip Tandon (1975) 1 SCC 267, the Hon’ble Supreme Court again reiterated that neither caste nor race nor religion can be made the basis of classification for the purposes of determining social and educational backwardness within the meaning of Article 15(4). When Article 15(1) forbids discrimination on grounds only of religion, race, caste, caste cannot be made one of the criteria for determining social and educational backwardness. If caste or religion is recognised as a criterion of social and educational backwardness Article 15(4) will stultify Article 15(1). It is true that Article 15(1) forbids discrimination only on the ground of religion, race, caste, but when a classification takes recourse to caste as one of the criteria in determining socially and educationally backward classes the expression ‘classes’ in that case violates the rule of expressio unius est exclusio alterius. The socially and educationally backward classes of citizens are groups other than groups based on Caste. The expression "classes of citizens" indicates a homogeneous section of the people who are grouped together because of certain likenesses and common traits and who are identifiable by some common attributes. The homogeneity of the class of citizens is social and educational backwardness. Neither caste nor religion nor place of birth will be the uniform element of common attributes to make them a class of citizens.

The Supreme Court in Indra Sawhney v. Union of India (1992) warned against the dangers of using religion as the sole basis for affirmative action, emphasizing that backwardness must be objective, identifiable, and secular in nature.

In the case of R C Poudyal v. Union of India & Ors. 1994 SCC (1) 234, the Hon’ble Supreme Court held that a separate electorate for a religious denomination would be “obnoxious to the fundamental principles of our secular Constitution”, but this would be the case only if provision is made “purely on the basis of religious considerations”.

The same line of thought has further been expanded by the Hon’ble Supreme Court in a plethora of judgments including I.R. Coelho v. State of T.N., (2007) 2 SCC 1 where the Hon’ble Supreme Court held that the right to life (Article 21) and the right to equality (Articles 14 and 15) represent “secularism” in the Constitution, thereby clearly trying to expand the meaning of “secularism” from mere religious rights to a conception, whereby equity and equality is achieved in society.

In this regard, on a similar note, the Hon’ble Supreme Court in the case of C.Selvarani v. Special Secretary-cum-District Collector, held that India is a secular country, and every citizen has a right to practice and profess a religion of their choice as guaranteed under Article 25 of the Constitution. One converts to a different religion, when he/she is genuinely inspired by its principles, tenets and spiritual thoughts; however, conversion for the sole reason of deriving benefit of reservation cannot be permitted. The Court pointed out that in the case at hand, the evidence clearly demonstrated that the appellant actively practices Christianity by attending church regularly. Despite this, the appellant claimed to be a Hindu and sought for Scheduled Caste certificate for the purpose of employment. Such a dual claim is untenable. “Therefore, the conferment of Scheduled caste communal status to the appellant, who is a Christian by religion, but claims to be still embracing Hinduism only for the purpose of availing reservation in employment, would go against the very object of reservation and would amount to fraud on the Constitution”.

Conclusion

The issue is that using religious identity as a blanket eligibility criterion violates the constitutional scheme. The Karnataka government would do well to recalibrate its framework, shifting from religious identity to socio-economic indicators. Instead of pegging reservation to religion, it should rather use data-driven identification of backwardness, across communities.

In conclusion, the 4% reservation for Muslims in Karnataka's government contracts raises urgent constitutional and ethical concerns. While economic justice for the marginalized is a valid policy goal, using religion as a shortcut for backwardness risks undermining the very constitutional morality the state is bound to uphold.

To conflate affirmative action with religious entitlement is not only dangerous—it risks reducing the Constitution’s guarantee of equality to a tool of political arithmetic. True inclusion lies not in religious quotas, but in building a secular, data-driven, and just framework that uplifts all disadvantaged citizens—regardless of faith.

Author is an Advocate practicing in the Supreme Court of India.

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]