Judicial Capability vs Political Resistance: The Weaponisation of Minority Representation

Part-3

The constitutional and political challenge India faces : ensuring that a substantial minority community is not structurally silenced within a majoritarian electoral system : is neither unique nor without precedent. Democracies across the world have devised a range of mechanisms, from formal reserved seats to institutional party obligations, that reflect the same underlying principle : that numerical democracy alone does not guarantee the effective representation of all significant communities. A comparative survey reveals that the mechanisms available are considerably more varied and contextually sensitive than the binary of “reservation or nothing” that tends to dominate Indian constitutional discourse.

“Numerical democracy alone does not guarantee the effective representation of all significant communities.”

The most internationally cited model of reserved minority representation is New Zealand’s Māori electoratesMāori ElectoratesNew Zealand system of reserved, opt-in parliamentary seats for indigenous Māori voters.. Māori seats were first introduced as a temporary measure, but were made permanent before 1900 and remain a constitutionally embedded feature of the House of Representatives. There are currently seven Māori electorates, with the number of seats directly calibrated to the number of Māori who choose to enrol on the separate Māori electoral roll. Crucially, the system is opt-in : Māori voters may elect to register on either the general roll or the Māori roll but not both, giving the community genuine power over the form of its representation.

The New Zealand model has particular relevance for India. It does not operate as a communal reservation. Then, after 1967 there is no legal requirement that the candidate standing in a Māori electorate must be Māori, though in practice every elected MP from a Māori electorate has been Māori : demonstrating that formal inclusivity and community-representative outcomes can coexist. Also, the model is not grounded in a claim of “backwardness” but in the constitutional recognition that indigenous Māori presence within the polity requires structural guarantees against majoritarian dilution : significant in the Indian minority rights context.

Lebanon offers an example of constitutionally approved religious community representation. The Parliament consists of 128 seats, with the Constitution mandating an equal division between Christians and Muslims, further subdivided into eleven recognised branches. This system allocates not merely parliamentary seats but also the highest executive offices along communal lines : the President is constitutionally required to be Maronite Christian, the Prime Minister Sunni Muslim, and the Speaker of Parliament Shia Muslim : every significant community is guaranteed a share of political power calibrated to its demographic presence. The Taif Agreement of 1989Taif Agreement (1989)Ended Lebanon’s civil war and revised the parliamentary representation formula to 50:50 parity. ended Lebanon’s civil war and revised the formula from a 6:5 Christian majority to 50:50 parity, illustrating that even entrenched arrangements can be renegotiated. However, that model also has problems of “elite capture” within communities, institutional paralysis, and freezing of identities that might otherwise evolve. India’s commitment to secularism and its far greater demographic complexity make direct adoption of the Lebanese model constitutionally and politically impossible.

Several European democracies have adopted a more modest but effective mechanism: exempting recognised minority parties from the electoral threshold requirements that apply to other parties. Serbia exempts minority parties from its 5% electoral threshold, allowing minority community parties to enter Parliament even if their national vote share is minimal. Denmark, Italy, and Poland similarly apply reduced or waived thresholds for parties representing recognised national minorities. This is instructive for India because it requires no constitutional amendment and no reservation : it operates through ordinary electoral law, can be implemented by Parliament under Article 327 or the Election Commission’s superintendence under Article 324, and leaves candidate selection entirely to community preference and competitive politics.

Applied to India, an exemption from the existing deposit-forfeiture threshold under the Representation of the People Act, 1951Representation of the People Act, 1951The primary Indian legislation governing the conduct of elections and qualifications of representatives. for recognised minority-community political formations could substantially lower the entry barrier for community-representative candidatures without the religion-reservation prohibition kicking in.

“Winner-take-all single-member plurality systems systematically underrepresent racial, ethnic, and religious minorities, particularly where minority voters are geographically dispersed.”

Germany, Sweden, the Netherlands, Belgium, Denmark, Switzerland, New Zealand feature minority representation without requiring formal quotas or reserved seats. Research consistently demonstrates that winner-take-all single-member plurality systems, such as India’s First-Past-the-Post (FPTP)First-Past-the-Post (FPTP)Electoral system where the candidate with the most votes wins, often structurally underrepresenting dispersed minorities., systematically underrepresent racial, ethnic, and religious minorities, particularly where minority voters are geographically dispersed rather than concentrated. The present clamour of delimitation can exacerbate the problem, which is possibly exactly what some parties desire. In a proportional multi-member district, a minority group constituting 20% to 30% of voters can elect at least one representative of their choice even without a geographically concentrated majority in any single constituency.

While a wholesale shift from FPTP to proportional representation would require a fundamental constitutional and statutory restructuring in India, even partial reforms could produce meaningful improvements in minority representation without engaging the religion-reservation prohibition.

Beyond electoral architecture, an increasing number of democracies have moved toward imposing statutory or quasi-statutory obligations on political parties regarding candidate diversity. Here, the BJP does not field a single Muslim. Canada, the United Kingdom, and Australia have all seen legislative and party-level initiatives requiring the publication of demographic data on candidates and elected representatives. In the UK, where visible minorities constitute approximately 14% of the population : roughly comparable to the Muslim share of India’s population : they hold approximately 10% of Parliamentary seats, a gap produced largely by party-candidate selection processes rather than electoral law. The UK’s Equality Act 2010 permits political parties to use positive action in candidate selection for underrepresented groups. (My write up on the proposed Equal Opportunities Bill modelled along the lines of the UK’s Equal Opportunities Commission led by Kay Hampton I shall elaborate on another time. South Africa’s Constitution goes further, requiring Parliament to consult the National House of Traditional Leaders when legislating on matters affecting community customs, institutionalising a consultative mechanism that parallels the “community veto” concept discussed in treatises on comparative political theory.)

Legislative Resource: Download the Draft EOC Bill (2008) | By Shafeeq R. Mahajir

Reviving the 2008 EOC Bill is crucial for effective inclusion. This version includes specific amendments by Shafeeq R. Mahajir. Key: Blue (modifications), Red (changes needed), Green (original), and Orange (deletions).

Download Draft EOC Bill (2008)

What the comparative survey demonstrates, taken as a whole, is that there is no single model of minority legislative inclusion : and that the most durable models are those calibrated to a polity’s specific demographic geography, electoral system, and constitutional structure. For India, the comparative evidence strongly suggests that the most viable path to enhanced Muslim legislative representation does not lie in direct constitutional reservation but in a combination of electoral law reform of threshold exemptions for experience elsewhere confirms that democracies can achieve meaningful minority inclusion through structural and procedural mechanisms that do not require either a constitutional amendment.

“To expect the present regime to voluntarily permit any positive structural change in Muslim legislative representation is not merely optimistic but will be laughed at.”

However intellectually persuasive any constitutional and comparative architecture may appear, it must ultimately confront the question whether the institutions empowered to act upon these arguments possess the political will to do so. A candid assessment of the trajectory of Indian legislative history, the consistent weaponisation of Muslim representation as an electoral liability, and the documented ideological slant of the current ruling dispensation forces the sobering conclusion that to expect the present regime to voluntarily permit any positive structural change in Muslim legislative representation is not merely optimistic but will be laughed at.

The demand for affirmative representation for Muslims is not novel. It has been repeatedly advanced : by State governments, expert committees, and judicial petitioners : and equally repeatedly defeated, often through the intervention of petitioners aligned with the majoritarian political formation that now holds power at the Centre and most states.

The Andhra Pradesh experience is emblematic. In 2005, the Congress-led state government promulgated an Ordinance extending four percent reservation to Muslims in government jobs and educational institutions. The Andhra Pradesh High Court struck it down. The state moved the Supreme Court in a Special Leave Petition; the litigation continued for years, and the reservation never took practical effect. In 2007, when a fresh Ordinance was issued, the Supreme Court was moved once again where the Court examined its constitutional validity, placing a cloud of uncertainty over the entire exercise. The AP precedent established a durable pattern : State governments proposing Muslim-inclusive affirmative action measures would face immediate, organised, and legally resourced challenge from petitioners ideologically linked to the BJP.

Telangana provided the next iteration of this pattern. The state had maintained a four percent reservation for Muslims within the OBC category for decades. When the BJP formed the Karnataka state government in 2023, one of its first acts was to scrap the nearly thirty-year-old four percent OBC quota for Muslims and redistribute it to the Vokkaliga and Lingayat communities : dominant caste groups whose electoral support the BJP was courting. This was not presented as a rights-neutral administrative reallocation. It was executed as a declarative political act, reinforcing the BJP’s standing position that Muslim reservation is constitutionally impermissible regardless of its formal classification under the OBC category.

At the national level, the Sachar Committee Report of 2006Sachar Committee Report (2006)Comprehensive governmental report documenting the socio-economic and educational deficits facing Indian Muslims. : commissioned by Prime Minister Manmohan Singh to document the socio-economic status of Muslims : arrived at findings that were, in retrospect, a constitutional indictment of seventy years of governance. The Committee found that Muslim representation in the Lok Sabha, proportionate to their population share, should yield approximately seventy-seven members, but their average strength since the first general elections of 1952 has hovered around twenty-five : 32.46% of what it ought to be.

The Committee made specific recommendations on delimitation, equal opportunity, and diversity indexing. A decade later, in 2016, not a single major recommendation had been implemented. By 2019, the Sachar Committee’s own members had publicly acknowledged that the report had been systematically ignored by every successive government, UPA and NDA alike. So for the Muslim, Congress or BJP has made no difference, except that one does not field Muslims and says it will not. The Congress-led UPA, which commissioned the report, was so hesitant about the electoral cost of its recommendations that it buried them under procedural inaction throughout even its second term.

Distinguishing the current BJP-led regime from its predecessors is its resistance to Muslim representation not merely pragmatic electoral calculation but explicitly stated, repeatedly enunciated ideological stand, articulated by its most senior leadership on identifiable occasions. Home Minister Shah, at a rally in Nanded in June 2023, stated “The BJP believes that there should be no reservation for Muslims because it is against the Constitution. There can be no religious discrimination.” The same position was reiterated at a Hyderabad rally in 2024, where he declared he would oppose any attempt by the Congress to introduce religion-based reservation for Muslims as long as he is alive. In Jharkhand in November 2024, he said “There is no provision for reservation on the basis of religion in the Constitution. We can never give reservation to any particular religion.”

During Lok Sabha debates on the Women’s Reservation Bill, on the demand for Muslim inclusion within the women’s quota he said “Muslim reservation will not be given. We will not give it and we will not allow anyone else to give it either.” This “not allow anyone else to give it” is particularly significant. It signals not merely a passive refusal to legislate but an active commitment to prevent even State-level affirmative action from taking effect, through judicial challenge and/or central intervention.

In Parliament, BJP MPs N Dubey and Tejasvi Surya raised the issue in the Lok Sabha in March 2025, alleging that Opposition-ruled states were engaging in “vote-bank politics” by granting reservation to Muslims under the OBC quota and demanding a central law prohibiting such a practice. In March 2026, BJP leader K. Laxman raised the matter in the Rajya Sabha, alleging that non-NDA states were violating constitutional provisions by providing OBC quota benefits to Muslims, prompting a walkout from Opposition members. These interventions demonstrate that the BJP’s position is not merely a passive legislative non-starter but an active, institutionally pursued campaign to roll back existing Muslim-inclusive measures wherever they exist.

However if one reads articles 15 (4)Article 15(4)Empowers the State to make special provisions for socially and educationally backward classes. and 16 (4)Article 16(4)Empowers the State to make provisions for reservation in appointments for backward classes. of the constitution one sees that it is only hostile discrimination that is prohibited (its words discriminate against carry meaning which is the antithesis of “discriminate in favour of”) and affirmative action is in fact an imperative requirement of constitutional governance. Having assumed office on the oath of the Constitution they seek to interpret it in a manner that does violence to both its language and intent. I cannot resist paraphrasing that great judicial mind, Justice Krishna IyerJustice V.R. Krishna IyerRenowned former Supreme Court judge celebrated for his pioneering, equity-focused human rights jurisprudence. : “Constitutional futility must be eliminated so far as interpretative possibility permits.” A nationalist cloak cannot cover up an incorrect interpretation.

The BJP’s strategic use of Muslim reservation as an electoral issue deserves separate analysis because it illuminates why the political landscape for positive change is structurally foreclosed rather than merely temporarily unfavourable. In the 2024 Lok Sabha election campaign, the PM himself projected Congress’s proposed affirmative action agenda as a scheme to “take reservations from SCs, STs, and OBCs” and “redistribute them to infiltrators” : a stand that falsely sought to cast Muslim inclusion not as a constitutional equity claim but as a communal transfer, messaging that the INDIA alliance intended to privilege Muslims at the expense of constitutionally protected BC communities. Such discourse is vitiating, not clarifying.

The effect of this framing is profoundly damaging because it has wrongly defined the political meaning of Muslim representation claims not as an issue of equity or ICCPR compliance, but a symbol of “appeasement” that secular parties must actively disavow to avoid communal labels. The Congress in its 2024 manifesto avoided mentioning “Muslim” by name. The INDIA alliance also avoided explicit Muslim-representative commitment. Fear of the BJP’s appeasement narrative has effectively foreclosed political advocacy from the very parties that would nominally support such measures.

“Fear of the BJP’s appeasement narrative has effectively foreclosed political advocacy from the very parties that would nominally support such measures.”

The judicial option is equally constrained as the current climate presents its own obstacles. The Supreme Court has, since 2014, exhibited a pattern of judicial restraint (read institutional caution) in cases with significant communal-political implications. The bench composition for politically sensitive constitutional matters is no longer experienced as reliably counter-majoritarian. The deferential posture adopted in matters touching on the Citizenship Amendment ActCitizenship Amendment Act (2019)Contested law providing expedited Indian citizenship for non-Muslim minorities from neighbouring countries. challenges, the Electoral BondsElectoral BondsAnonymous political funding scheme struck down by the Supreme Court as unconstitutional in 2024. litigation (which took years to reach adjudication), and various habeas corpus proceedings suggests that the Court has internalised a degree of restraint precisely in the constitutional spaces where Muslim representational claims would need to be litigated.

A report of March 2025 by Centre for Development Policy and Practice, Rethinking Affirmative Action for Muslims in Contemporary India, reflects the narrow space now available to reform advocates : its recommendations avoided direct reservation claims, retreating to categories of OBC quotas and sector-specific policies : a significant climb down from the Sachar Committee’s forthright recommendations two decades earlier. This is further evidence of political possibility standing restricted.

The instruments of positive constitutional change available to Muslim representation claims via legislative reform, electoral law amendment, party diversity obligations, etc. require ideologically aligned political will or judicial courage of an institution that has shown deference to “political will”.

The Sachar Committee documented the problem’s merit. The courts have acknowledged the principle of need for a remedy. India’s treaty framework establishes the obligation. Yet, at present, the dominant political formation has stated, on multiple occasions, at the highest levels, not merely that it will not legislate for Muslim representation, but will actively prevent any other instrumentality, i.e., state government, party, or electoral body, from doing so.

The intellectual architecture of minority inclusion is present. The political conditions for its realisation are being actively negated. The judiciary, the final arbiter and nation’s conscience keeper, has the power to step forward and forge a result that can guide the world in similar contests, be talked about internationally as a constitutionally exemplary achievement. Perhaps it will.

Jai Hind

Legislative Resource: Download the Draft EOC Bill (2008) | By Shafeeq R. Mahajir

Reviving the 2008 EOC Bill is crucial for effective inclusion. This version includes specific amendments by Shafeeq R. Mahajir. Key: Blue (modifications), Red (changes needed), Green (original), and Orange (deletions).

Download Draft EOC Bill (2008)