The manner in which the Devendra Fadnavis government in Maharashtra has scrapped the judicially allowed 5 per cent reservation for Muslims in educational institutions shows it has no qualms about being seen as discriminating against the minority community. The reason given in the Government Resolution scrapping the quota, introduced first through an ordinance in July 2014, is specious: it merely states that the ordinance lapsed in December. The irony behind the policy decision is that this quota was the only portion of the ordinance that was permitted to operate by the Bombay High Court in its interim order of November 2014. The High Court held, prima facie , that the 16 per cent quota for the Maratha community in both education and employment was unconstitutional. The Court agreed with the conclusions of the State Backward Classes Commission that the Maratha community could not be termed backward in view of its dominant social position. The Court stayed reservation for Muslims in public employment, while allowing it in government and aided educational institutions. Yet, the government got a Bill passed in the State Assembly providing for reservation for Marathas. It appears bent upon implementing a policy measure that helps the Maratha community despite the fact that this approach was stayed. Yet the government is not interested in continuing with the Muslim quota, which has judicial sanction.
It may be argued that reservation for Muslims is invalid as it amounts to discrimination on religious grounds, which is expressly prohibited by the Constitution. Yet, several courts have recognised that where the reservation is for identified subgroups within a religious community, and extended on the ground of social and educational backwardness based on quantifiable data, such affirmative action is valid. In the case of Maharashtra, the quota is applicable to 50 identified sub-communities among Muslims. In Tamil Nadu, too, 3.5 per cent reservation for Muslims is being implemented without any problem, mainly because it is applicable to them not on the ground of religion but on the basis of their social and educational backwardness. Several reports, mainly those of the Sachar Committee, the Ranganath Misra Commission and the Mehmood-ur-Rehman Study Group have accepted that Muslims are educationally and socially backward, and special measures are needed to bring them into the mainstream of secular education. The government could have pursued the ongoing litigation on both kinds of reservation to its logical conclusion in the Supreme Court before acting in a manner contrary to what the interim orders permit. If it is serious about its commitment to minority welfare, it should provide better access and greater opportunities to Muslims to pursue avenues of secular education.
