Unconstitutional and Communal

Recently, the Congress-led Karnataka Government obtained Cabinet approval for amending the Karnataka Transparency in Public Procurement Act, 1999. The amendment bill, titled the Karnataka Transparency in Public Procurement (Amendment) Act, 2025, was introduced in the current legislative session and has sparked intense controversy.Bone of ContentionA major point of contention in this amendment bill is the provision for a four per cent reservation for Muslims in public contracts.

The Congress Government, allegedly for political reasons, has proposed religion-based reservations for Muslims, specifying separate categories for Scheduled Castes (SC), Scheduled Tribes (ST), and Category II beneficiaries in the amendment.However, opposition parties have accused the Government of deliberately not making a separate mention of the “Goods and Services” category, thereby attempting to alter the original intent of the law.Subverting Constitutional PrinciplesDespite strong opposition, the bill was passed in the legislature.



BJP and other opposition parties have criticised the Congress Government, alleging that it undermines the constitutional principles by reserving a share for Muslims in Government contracts valued up to Rs 2 crore. The opposition has also decided to challenge the amendment legally.Adding to the controversy, during a media interaction on the same issue, Karnataka’s Deputy Chief Minister, DK Shivakumar, was asked by a journalist: “The Constitution does not permit religion-based reservations.

Despite this, how did you pass the amendment bill?” In response, Shivakumar stated that they were even prepared to amend the Constitution to facilitate reservations for Muslims. His remark further escalated the dispute.Unconstitutional Nature of Religion-based ReservationsThe Indian Constitution provides reservations based on social and educational backwardness rather than religion.

Various articles clearly convey why it is illegal to provision reservations based on religion.Following provisions explicitly define scope of affirmative action for socially and educationally backward classes and not religion:Article 15(3): Allows the state to make special provisions for women and childrenArticle 15(4): Enables reservations for socially and educationally backward classes, including Scheduled Castes (SCs) and Scheduled Tribes (STs)Article 16(4): Permits reservations in public employment for underrepresented backward classesArticle 16(4A): Grants reservation in promotions for SCs and STs in Government jobsArticle 243(T): Reserves seats for SCs and STs in municipal bodiesArticles 244 & 244(A): Provide special administrative arrangements for Scheduled Areas and TribesArticle 330: Reserves seats for SCs and STs in the Lok SabhaArticle 331: Previously reserved seats for Anglo-Indians in Parliament (now repealed)Article 332: Reserves seats for SCs and STs in State LegislaturesArticle 335: Governs reservations in government jobs for SCs and STsArticle 338: Establishes the National Commission for SCs and STsArticle 339: Provides Union oversight on the administration of Scheduled AreasArticle 340: Facilitates the investigation of conditions of socially and educationally backward classesArticle 350(A): Ensures primary education in the mother tongueArticle 350(B): Appoints a special officer for linguistic minoritiesArticle 351: Promotes the development of the Hindi languageArticle 370: Previously provided special provisions for Jammu & Kashmir (now repealed)Articles 371 to 371(J): Grant special provisions for specific states like Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, Goa, and Hyderabad-KarnatakaWomen’s Reservation in Legislatures: Enacted through constitutional amendmentsThe Karnataka Government’s decision and DK Shivakumar’s statement about changing the Constitution have also resonated in the Parliament. This move has reignited discussions on constitutional possibilities, especially considering that a previous attempt by the Karnataka Government to grant religion-based reservations to Muslims had failed.

Nevertheless, the current amendment’s approval has once again stirred debates on the legal and constitutional feasibility of such provisions.Challenge to Constitutional IntegrityThe Constituent Assembly, under the leadership of Dr BR Ambedkar and Dr Rajendra Prasad, meticulously structured the Constitution to uphold the principles of justice, equality, and fundamental rights. Article 14 of the Indian Constitution asserts that all citizens are equal before the law, ensuring non-discrimination.

Additionally, Article 361 provides special privileges to the President and Governors while maintaining the principle of decentralisation through a federal structure.During the drafting process, framers of the Constitution examined various global constitutions, adopting valuable elements while preserving the distinct Bharatiya identity. The Constitution was designed with the foresight that its efficacy would depend on the integrity of those governing it.

Dr Ambedkar, in his final speech on November 25, 1949, stated that the Constitution’s effectiveness would depend on the quality of the administrators: “If good people govern, the Constitution will be good; if bad people govern, it will appear flawed.”Over time, political influences have occasionally distorted constitutional principles, sometimes leading to legislative overreach. The 24th Amendment of 1971, which modified the amendment process itself, stands as a historical example of constitutional overreach.

The Karnataka Government’s introduction of a religious-based reservation policy is driven by political motivations, challenges constitutional integrity and judicial review mechanisms.Constituent Assembly on Religious-based ReservationDuring the drafting of the Constitution, the framers explicitly rejected religious-based reservations. The Congress leader, Pandit Thakur Das Bhargava, proposed an amendment limiting SC/ST reservations to ten years.

Another Congress member, ZH Lari, argued against any form of religious or caste-based reservation.On May 11, 1949, Sardar Vallabhbhai Patel, Chairman of the Minority Advisory Committee, wrote a letter to the President of the Constituent Assembly. In this letter, Dr HC Mookherjee, Tajamul Hussain, Lakshmikant Maitra, and others recommended the cancellation of all reservations provided to Muslims.

Ultimately, Patel noted in the letter that since Muslims themselves were insisting on the abolition of religion-based reservations, the committee recommended the annulment of Muslim reservations.The Minority Advisory Committee, chaired by Sardar Vallabhbhai Patel, recommended abolishing Muslim reservation system inherited from the British era. This recommendation was unanimously accepted by both the Constituent Assembly and the Drafting CommitteeNotably, no member criticised either Dr BR Ambedkar or Sardar Patel for recommending the cancellation of Muslim reservations.

However, Congress member Nagappa strongly criticised ZH Lari, accusing him of discrimination in the matter of providing reservations for Scheduled Castes and Tribes.On May 25, 1949, Muslim League member Naziruddin Ahmad stated that reservations foster a sense of inferiority and are detrimental to political development. Mohammad Ismail, Syed Mohammad Sadulla and Pocker Sahib officially declined the need for reservations for Muslims.

Minority Advisory Committee’s DecisionThe Minority Advisory Committee, chaired by Sardar Vallabhbhai Patel, recommended abolishing Muslim reservation system inherited from the British era. This recommendation was unanimously accepted by both the Constituent Assembly and the Drafting Committee. Patel, acknowledging India’s socio-political challenges, emphasised the necessity of nation-building over sectional privileges.

Verdicts on Religion-based ReservationsAs per the constitutional provisions on reservations, Muslims fall under the 3B category, which means they are classified as Other Backward Classes (OBCs). According to the directives of the Supreme Court, the total reservation quota must not exceed 50 per cent, ensuring that the remaining 50 per cent is allocated based on general merit. Any additional special reservation for Muslims beyond this limit would directly encroach upon the quota meant for Scheduled Castes and Tribes.

Furthermore, since the Constitution does not provide for such special reservations, any attempt to grant them would naturally result in the reduction of OBC reservations. Consequently, such actions would violate the recommendations made by the Minority Advisory Committee on May 11, 1949, as well as the fundamental principles upheld by the Constituent Assembly.The Supreme Court and various High Courts have consistently ruled against religious-based reservations.

Landmark cases include:● DP Joshi v. State of Madhya Pradesh (AIR 1955)● Balaji v. State of Mysore (AIR 1963)● Periakaruppan v.

State of Tamil Nadu● P.A. Inamdar v.

State of Maharashtra● Ashok Kumar Thakur v. Union of India (2008)● EWS 10 per cent Quota Case (103rd Amendment)● And Andhra Pradesh, Tamil Nadu, Telangana Muslim Reservation CasesAndhra Pradesh High Court has declared reservations for religious minorities as constitutionally invalid. In 2005, a five-judge-bench of the Andhra Pradesh High Court struck down the Government Order giving the reservation of 5 per cent to Muslims on the ground that it was given without consulting the Backward Class Commission.

The sub-quota violated the constitutional injunction that State action should not be based on religion alone. The High Court did not say that a sub-quota could not be created for the more backward classes among the OBCs, including minority OBCs. It only said that such a sub-quota cannot be created on the grounds of religion.

The Report of the National Commission for Religious and Linguistic Minorities (NCRLM) on which the Central Government placed extensive reliance also does not justify the creation of a sub-quota on religious lines.The judiciary has ruled that reservations based on religion violate constitutional principles. Furthermore, Articles 25 to 28 and 29 to 30, which provide religious and linguistic minority rights, do not endorse religious-based reservations.

Political decisions, such as the provision by Karnataka Government, to implement such reservations undermine the Constitution’s core structure and violate judicial precedents..