New Delhi: The Karnataka government's decision to scrap the four per cent Muslim quota ahead of the assembly polls Thursday came under the scanner of the Supreme Court, which questioned the government order and said prima facie it appeared to be on a "highly shaky ground" and "flawed".
Taking note of the observations, the Karnataka government assured the top court it will put on hold its March 24 order by which it had given quotas in admission to educational institutions and appointment in government jobs to Vokkaligas and Lingayats, till April 18, the next date of hearing.
The four per cent reservation for Muslims was to be equally split between the two communities.
The top court said from the records tabled before it appears that the Karnataka government's decision is based on an "absolutely fallacious assumption".
A bench of Justices K M Joseph and BV Nagarathna, which gave time till April 17 to the state government and counsel representing members of Vokkaliga and Lingayat communities to file their response to a batch of petitions challenging the government order, recorded that no admissions or appointments will be made till April 18 on the basis of the impugned order.
Senior advocates Kapil Sibal, Dushyant Dave and Gopal Sankarnarayanan, appearing for members of the Muslim community from Karnataka said no study was conducted and there was no empirical data available with the government to scrap the quota for Muslims.
Solicitor General Tushar Mehta, appearing for Karnataka, sought some time to file replies to the petitions and assured the bench that nothing irreversible will happen till Tuesday and no appointments and admissions will be made in the meantime based on the March 24 GO challenged by the petitioners.
During the hearing, the bench told Mehta, "On the basis of the documents and materials produced before us it appears that Muslims were backward and then suddenly it has changed. As a student of law, it prima facie seems that the government order is based on absolutely fallacious presumptions."
Justice Joseph told Mehta, who was seeking time to file a response to the petitions, "We are just saying that prima facie the order you have passed appears to suggest that the foundation of your decision is on highly shaky ground and flawed."
Justice Nagarathna questioned the urgency with which the government issued the order and said it was based on an interim report and that the state could have waited for the final report.
Mehta said, "Nowhere quota can be granted on the basis of religion and if it has been granted then it is a mistake. It is not that the entire Muslim community has been denied quota in Karnataka. They have been granted a 10 per cent quota in the Economically Weaker Section (EWS) category. There are certain other Muslim communities like Pinjara, Mansoori etc., who fall under the OBC category and they are still getting the quota."
He said it will be unfair for the court to pass an interim order without giving an opportunity to the state government to file its response.
"We will not pass any interim order if some kind of assurance is given to the court that no action will be taken based on the impugned government order," Justice Joseph said, adding there is a provision to accept an interim report and grant quota.
Mehta said there is no bar to it and the power to file a report includes the power to file an interim report and he has been instructed to say there was no empirical data available or there was any study to establish that the Muslim community as a religion could be granted reservation.
"Petitioners have referred to Justice O Chinnappa Reddy Commission report on backward classes which did not say that Muslims were backward. I will file some more reports with regard to this fact. Muslims, who are OBCs are already getting reservation, he said.
At the outset, Dave, appearing for petitioner L Ghulam Rasool, said two days before the elections were announced in the state, the government removed the four per cent quota for Muslims and gave it to the Vokkaligas and Lingayats, which is completely "unconstitutional and arbitrary".
"This was done on the eve of the election being announced. I am shocked as to how the government can do this without any empirical data or some concrete study. This is against a series of judgements of this court. It is against the 1995 statute of the state," he said.
Dave said on the basis of empirical data and material, it has been found that Muslims are a backward community in the state and they deserve reservation.
"It is my right not largesse. It could have been understood had there been any study or empirical data. But there are none. Your interim report itself says that Muslims need to be granted reservation. Where was the need to touch it (quotas)? This court has said that reservations cannot be for political reasons," he said, adding the Vokkaligas and Lingayats were already enjoying the benefit of reservation.
Justice Nagarathna asked Dave what would be the impact on the Muslim community of this government order.
"I will lose access to government jobs and admissions to educational institutions. Minorities need to be protected by this court," Dave responded.
Sankaranarayanan, also appearing for the petitioners, said they have put the Muslims under the EWS quota, which is a family unit-based quota depending on individual family earnings and not community-based reservation.
Sibal, also appearing for the petitioners said, "Since 1994, I was entitled to quota but now in 2023, I am not entitled. I am put in a general category that too without any study. This is violative of Article 14 and the worse is that they now say what was granted for 30 years was wrong."
Senior advocate Mukul Rohatgi, appearing for members of the Vokkaliga and Lingayat communities, said no interim order should be passed without allowing them to place their response to the petitions.
"This is a case of grant of the quota to someone else. I am only saying that give us some time to file our replies to the petitions. They have not shown anything which warrants the court's indulgence for interim relief. It's a matter of 4-5 days. It would be unfair to pass any interim order and my quota will also go," he said.
Justice Joseph said the government order seems to be in the teeth of the backward commission's report.
"This court by two constitution bench verdicts of five and seven judges have held that religion cannot be the basis for reservation," he said and pointed out that some high courts have also taken this view.
The state's BJP government headed by Basavaraj Bommai decided to scrap the four per cent reservation for Muslims in government jobs and educational institutions weeks ahead of the state assembly polls on May 10.
The state government announced two new categories of reservation and divided the four per cent Muslim quota between the Vokkaligas and Lingayats, the two numerically dominant and politically influential communities. Muslims eligible for quotas were categorised under the economically weaker sections.
The state government's decision has pushed the reservation limit to around 57 per cent now.
