SG Tushar Mehta To Supreme Court: HM Amit Shah Well Within Rights To Say That Religion-based Reservation Is 'Unconstitutional'

The Supreme Court today (May 9) observed that sub judice cases should not be “politicised” while hearing a petition alleging that Union Home Minister Amit Shah made public statements supporting the scrapping of the 4% quota for Muslims in Karnataka by the BJP government.

“Why should such statements be made by anyone when the matter is sub judice?” a Bench of Justices K. M. Joseph, B. V. Nagarathna and Ahsanuddin Amanullah asked taking objection to HM Amit Shah's remarks.

The SC bench observed that that public functionaries should exercise restrain in their speeches, and not politicise issues that are under consideration by the Court.

The remark was made after senior advocate Dushyant Dave, appearing for the petitioner Ghulam Rasool challenging the decision to scrap the quota, highlighted the remarks by HM Amit Shah.

“They are proudly saying that they have withdrawn [the quota]…” Dave said.

In multiple interviews to local television channels in Karnataka, HM Amit Shah had said there was no provision for reservation on the basis of religion in the Constitution, and the 4% quota was completely unconstitutional. The BJP Government in the State scrapped the reservation to uphold constitutional provisions, Shah argued.

Solicitor General Tushar Mehta raised objection to the submission, saying the Court had not been “told about the context, content or anything”.

SG Tushar Mehta said that it was fully justified that HM Amit Shah is principally against religion-based reservation.

“We just want discipline to be maintained…when a matter is pending before the Court…” Justice Nagarathna responded.

The State brought up the right to free speech, but the bench said a reservation issue pending in Court ought not to be politicised.

The Bench adjourned the case after SG Tushar Mehta committed that no appointments or admissions will made in the State on the basis of the State Government order of March 27, which divided the 4% quota equally between the Vokkaliga and Lingayat castes, for the time being when the case was pending in the Supreme Court.

The bench refused to entertain a prayer by senior advocate Prof Raviverma Kumar, appearing for the Central Muslim Association (one of the petitioners), to restrict the media from publishing speeches against Muslim quota.

In its submission last month, the BJP-led Karnataka government made a strong case before the Supreme Court against religion-based quota and defended its decision" to scrap reservation on the sole basis of religion for the Muslim community, saying it is unconstitutional and violative of Article 14 to 16 of the Constitution.

The state government was responding to a batch of petitions challenging its two orders dated March 27, scrapping the 4 per cent quota for Muslims in the 2B category of the 'Other Backward Castes' and granting benefits of increased quota to Vokkaligas and Lingayats in admissions and appointments to government jobs.

In its affidavit, the state justified the removal of the four per cent quota for Muslims, saying reservation on the basis of religion was unconstitutional. 

In March,the BJP government abolished religion-based reservations in Karnataka. It scrapped the 4 per cent reservation for Muslims in the state under the Other Backward Classes (OBC) category and distributed it to two politically influential communities — Veerashaiva-Lingayats and Vokkaligas — at 2 per cent each in jobs and admissions in educational institutions.

The state cabinet also decided that the Muslim community in the state can now avail of benefits under the 10 per cent quota for Economically Weaker Sections (EWS). It also recast the internal reservation formula for the 17 per cent quota for around 101 groups classified as Schedule Caste (SC)