Constitution, Equality & Muslim Reservation

 

by Prof. Faizan Mustafa, Vice-Chancellor NALSAR University of Law, Hyderabad

 

The promulgation of the Constitution based on Democracy, Rule of Law, Social Justice and Secularism, in 1949, though the original Article 296 in the Draft Constitution providing for reservation for in legislature and due representation in the executive had been dropped, had revived their spirits to some extent.

 

Unfortunately, during the years of transition between 1947-77, the community remained diffident about its future, faced as it was with recurring communal violence, blatant hostile discrimination and systematic vilification.

 

By early eighties the community realized that its future unquestionably lay in its motherland and that, along with the emergent social forces that had been unleashed by democracy and development, it had both to develop a stake in development and, at the same time, assert its equitable share through participation in public life. Thus they started demanding their share in the national developmental cake through affirmative action.

 

Muslim reservation was suggested by the Rangnath Commission also and UPA government did provide 4.5 % reservation to minorities( not Muslims alone) before the U.P. elections but the same was stayed as after losing elections UPA did not defend it well in the Andhra High Court. The matter is in the apex court.

 

Three issues are to be understood here: is it religion based reservation and thus unconstitutional, reservation for Muslims is unjustified as Islam does not recognize caste system and by this kind of reservation, share of Hindu Backward castes is going to be snatched away.

 

This is not religion based reservation. It is not reservation for minorities or for Muslims. It is reservation for certain BCs identified on the basis of social and educational backwardness.

 

This is also not a new reservation. The Backward Class Minorities have already been identified in the Central List State-wise in 1993 based on commonality between each State List and the Mandal List for each State and others on the statutory advices of the National Commission for Backward Classes (NCBC) set up on the direction of Supreme Court in the Mandal judgement. All of them were identified solely on the basis of social and educational backwardness as prescribed by the Constitution.

 

Religion of castes / communities was not a factor at all — neither a qualification nor a disqualification. Any scheme of reservation can be criticized as one based on religion only if all members / castes or communities of any religion are included in toto and given reservation.

 

In the State-wise Central List of Backward Classes, just as certain castes of Hindus which are not socially backward are not included, Muslim castes / communities like Syed, Pathan, Mogul, Arab, Irani, Cutchi-Memon, Bohra, Khoja, etc., and Christian castes or communities like Syrian Christians and Sikh castes like Jat Sikhs, Khatri Sikhs etc. are not included because they are not socially backward.

 

Obviously, castes/communities which are included in the BC list and provided reservation are not based on religion and what has been done is not at all unconstitutional. Moreover the crucial word in Art 15 Art 16 is “only”. This implies that if a religious, racial or caste group forms a weaker section under Article 46 or constitutes a Backward Class under Article 15(4) & 16 (4) of the Constitution, it is entitled to special provisions for its advancement.

 

The fact is that 66 years after independence the Muslims, and other minorities, particularly in States and UTs where they form a minority, constitute a Backward Class within the meaning of Articles 15(4) & 16(4) of the Constitution. The Muslims have, therefore, been demanding reservation not because they are Muslims but because they constitute as a Backward Class.

 

In the course of the debate in the Constituent Assembly, Dr. Ambedkar & others repeatedly used the word ‘community'. Subsequently the Mandal Commission, 1980, following example set by several states, included sections of the Muslim and other religious minorities in the list of OBCs. The Gopal Singh Panel, 1983, proposed that Muslims should enjoy reservation at least in Groups C & D Posts, because of their educational backwardness.

 

Later, the Supreme Court judgment in the Inder Sawhey case laid down that any social group, whatever its mark of identity, if it is found to be backward under the same criteria as the others, will be entitled to be treated as a Backward Class. This was also the view take by former Chief Justice Venkatachalliah when he presided over the National Commission on the Constitution.

 

The Sachar Report too has scientifically & thoroughly established through Government statistics & reports that the Muslims constitute a Backward Class. This conclusion is also supported by the investigation conducted by the Mishra Commission.

 

More importantly, several states in India, particularly Karnataka, Kerala, Tamil Nadu and Manipur, have included Muslims qua Muslims in the Lists of Backward Classes & allocated them separate quotas. These inclusions have not been judicial challenged. Obviously, the Constitution cannot be interpreted differently in different parts of the country.

 

The conclusion, therefore, is that the Muslim community which constitutes a Backward Class is entitled to reservation in government jobs and education as well as, benefits of development and that reservation will act as catalyst for its uplift . The inclusion of non-Hindu castes / communities in the list of BCs is not a new- fangled innovation of vote-hungry politicians. Even before Independence, in the southern States, Muslims or certain castes/communities of Muslims have always been included in the BC lists along with Hindu and Christian backward castes.

 

This was also done by post-Independence State Backward Class Commissions and the National-level Kalelkar (1953-55) and Mandal (1979-80) Commissions — the national Commissions also identified the BCs of Sikhs and Buddhists (before SC converts to Buddhism were recognised as SCs). They were only recognizing social reality without being influenced either way by the religion of members of castes / communities found to be socially and educationally backward.

It is true that the social ideology of Islam is uncompromisingly egalitarian and upholds equality and fraternity. But, the social system among adherents of Islam is based on various social and economic factors. On account of socio-economic factors, Muslim society in India (and also in some other parts of the world) presents a picture of social inequality.

 

The Indian Caste System is so all-pervasive that J.H. Hutton, the scholarly Census Commissioner of 1931 rightly observed: “Caste was in the air, and neither the followers of Islam nor of Christianity could escape the infection of caste; even the change of religion does not destroy the caste system, for Muslims who do not recognize it as valid are found to observe it in practice and there are many Muslim castes as well as Hindus”.

 

This is not different from the situation among adherents of other religions also. The Vedas and Upanishads proclaim the universality of the same soul permeating all beings, human and even non-human. But notwithstanding their lofty spiritual position, a virulent caste system has emerged in the Hindu society. The socially perspective landmark Mandal judgment of Supreme Court also notices the prevalence of the caste system among adherents of non-Hindu religions.

 

Therefore, it is illogical and factually incorrect to say that because Islam does not recognise caste, there are no castes or caste-like social collectivities within Muslim society.

 

According to Mandal Commission, BC Hindus formed 43.7%. At that time, Hindu population was 83.84% of Indian population. 43.70% in 83.84% is same as 52 out of 100. Therefore, the Commission applied a rule of the thumb and assumed that the percentage of BCs among non-Hindus would also be 52% of the population of Minorities.

 

At that time, the population of Minorities was 16.16%. 52% of 16.16% is 8.4%. The total population of BCs of all religions was estimated by aggregating 43.7% plus 8.4% which is equal to 52%.The rule of the thumb is not quite accurate. But Mandal Commission had to take recourse to it because the Census has persistently turned a blind eye towards the need for furnishing the population of BCs in the country as it has been doing for SCs and STs from the beginning.

 

While it gives the population of each religious community, it has stoutly refused to count the BCs within each of them. Mandal Commission recommended a reservation of 27% for the 52% of BCs, mainly to stay safely within the overall limit of 50% according to Supreme Court's interpretation of the Constitution. Government of India accordingly provided 27% reservation for BCs. 4.5% reservation for the Mandal-estimated 8.4% minority population, out of 27% for 52% of whole-BC population, is all right arithmetically-proportionately.

 

This cannot be called excessive. Muslims need reservation for a number of reasons. First, when the Constitution was being drafted, the issue of definition of the backward classes arose. A member of the Constituent Assembly asked whether backward classes include minorities. Sardar Patel answered in the affirmative.

 

Two, reservations for Muslims are needed to fulfil the demand of social justice.

 

Three, the empirical data furnished by the Sachar Committee and the Justice Ranganath Mishra Commission show that Muslims are socially and educationally backward.

 

Four, the argument that quotas should not be based on religion is wrong. Article 341 of the Constitution and the 1950 Presidential Order state that only Hindus, Sikhs and Buddhists can be called dalit. Is this not based on religion? Article 341 violates the fundamental right to equality.

 

Five, the quota for Muslims is based on their social, educational and economic backwardness.

 

Six, Muslims face double competition. They have to compete with the forward classes, and also with those who already enjoy the benefits of reservation.

 

The socio-economic indicators for Muslims are worse than those of dalits. Muslims make up just two per cent in civil services and their number is virtually nil in Class III and Class IV employment.

 

The development of Muslims would make india stronger as the country cannot afford to have such a large section of its population as uneducated and backward. They are entitled to an equal share on the basis of equality and democracy. Secularism has nothing to do with it.

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