The Supreme Court has consistently held that the power to provide for reservations for backward classes under Article 15 and 16 is an enabling power, but if the State is exercising the power of providing reservations for designated backward classes, it has to demonstrate the existence of backwardness and inadequacy of representation of the backward classes in public services. These are constitutional condition precedents that have to be satisfied by the State.  Following this norm, Justice Meena Kumari in her concurring judgement held that the material collected by the Backward Class Commission is “not sufficient for the Government to come to the conclusion that specific classes of Muslims can be classified as a backward class.”  

All three judgements of the High Court are significant for fleshing out the constitutionally compatible norms for identification of backward classes. Any exercise of identification of backward classes has to be preceded by a scientific investigation of backwardness. The identifying authority has to lay down relevant criteria for assessing social and educational backwardness. This should be followed by an empirical investigation that considers all sections of the society before designating a group as a backward class.

Does the High Court ruling imply that groups within Muslims cannot be designated as a “backward class” and avail the benefit of reservation? Certainly not. If an investigation of backwardness of all sections of society reveals that certain groups among the Muslim religion are indeed backward, there is no prohibition in designating them as a backward class. Nowhere is this more evident than in Andhra Pradesh itself where the Supreme Court upheld inclusion of certain Muslim groups in the backward class list when the investigation extended to all classes of the society. But if the investigation of backwardness is confined exclusively to one religion, it will fall foul of the constitutional prohibition of discrimination based on religion. 

It is constitutionally permissible to include a religious group within a backward class list, but it is constitutionally impermissible to make religion as the basis for the identification of backward classes.

Vivek Reddy is a lawyer practicing before the Andhra Pradesh High Court and was counsel appearing before the seven-judge bench in the High Court. A version of this column appeared in the New Indian Express on February 15, 2010.

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