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Reservation for Muslims?
By Mohammad Ashfaque , Calcutta

In the Preamble of our Constitution we have resolved to secure to all citizens of India "Social, Economic and Political Justice" and "Equality of Status and Opportunity". Article 14 of our Constitution guarantees to every citizen the right not to be denied equality before law. Article 46 lays down as a Directive Principle of State Policy that the State shall promote with special care the educational and economic interests of the weaker sections of the people. While Article 15 prohibits "discrimination on grounds of religion, race, caste, sex or place of birth", Article 16 guarantees " Equality of opportunity in matters of public employment." Article 29 confers upon the minorities the right to conserve their language, script or culture. Under Article 30 of our Constitution the minorities have a right to establish and administer educational institutions of their choice.

Despite the above constitutional safeguards members of the Muslim community in India are denied proper justice and kept isolated from the mainstream of our Country's progress and prosperity. The benefits of the various development programmes and policies of the Central and State Governments have not reached a large section of the Muslim minorities in India, as a result of which the socio-economic status of Muslims has considerably gone down. Inadequate and poor representation of Muslims in the services under the State has denied the Muslim community the opportunity of effective participation in the governance of the country. While there is so much talk of empowerment and democratic rights and privileges, the Muslim community in India is compelled to remain content with a back seat having no access to the steering or control over the wheels.

Percentage of literacy among the Muslims particularly among Muslim women is much lower than the national average. Attempts made by the community to establish its own educational institutions are met with resistance from the concerned authorities, who often refuse to accord recognition to such institutions. Applications for recognition/ affiliation of such institutions are kept in abeyance / pending for abnormal long time. Such absurd conditions are often imposed, the acceptance of which would virtually deprive the community of its right to establish and administer educational institutions of their choice. Surrender of the fundamental rights of administering the institution established by the community are often demanded as the price for financial assistance doled out by the State. Minority institutions are subjected to discrimination in the matter of granting aids and sanction of assistance to educational institutions.

The Government at the Centre and in some other States are trying to saffronize the education system with a view to indoctrinate the students by distorting history and historical records. Muslim institutions are looked upon with suspicion and considered to Centres of ISI and other anti national activities.

While the country has made rapid progress in almost all spheres of activities the members of Muslim community have remained socially and educationally backward in India.

Unemployment and poverty are chronic problems for the Muslims in India. Apart from suffering from social and educational backwardness the community is very poorly/ inadequately represented in the services under the state. Though Muslims account for more than 12 % of the total population of India, their percentage in government jobs is less than 3 % ( mostly in lower grades). Their representation in Nationalized Banks and other Public Sector Units of the Centre and State Governments is much lower than their share in the Government jobs. Employment exchanges in the States discriminate with the registered Muslim job seekers in the matter of submission of names for consideration by the employers as a result of which Muslim Job seekers are deprived of the opportunity of being placed in employment.

Even for availing the benefit of Self Employment Promotion Schemes a Muslim entrepreneur has to run from pillar to post and follow time consuming cumbersome procedures even to have short term loan of small amount of Rs 25,000/- sanctioned and disbursed by the Bank. Many of them have to face disappointment when after waiting for considerable long time they are informed of rejection of their loan applications by the authorities without any valid reason.

Reservations for Muslims, in matters of admissions in educational institutions and appointments to government jobs, under Articles 15 (4) and 16 (4) of the Constitution of India, have been suggested as a solution to the problems of Muslims in India. The demands for Reservation for Muslims have, however, remained confined to fiery speeches, shouting of slogans or resolutions passed in Conferences, aimed primarily to woo Muslims and to exploit their sentiments by giving them false hopes and promises which are not meant to be kept or honored. The issue of reservations for Muslims has not been seriously pursued to logical ends. Though the community is facing serious problems somehow or the other we appear to have failed to adopt convincing or compelling logistic methods of reasoning to justify the demands for protection of the community under the law. 

Articles 15 (4) and 16 (4) of our Constitution are mere enabling provisions and do not impose any obligation on the governments. It is left to the discretion of the governments to make special provision for the advancement of any socially and educationally backward classes of citizens and /or make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. No Court can issue writ of mandamus to the Centre or the State government to make reservations under the above provisions of the Constitution. The governments have to adopt proper criteria for determining the backward classes, who may be eligible for such reservations. The criteria laid down by the government may, however, be subjected to scrutiny or judicial review by the Courts.

Articles 15 (4) and 16 (4) of the Constitution of India are meant to prevent discrimination and to put and end to inequality of opportunity in matters of admissions to educational institutions and public employment. Provisions of Articles 15 (4) and 16 (4) have been used to provide some reservations but steps taken pursuant thereto have proved to be very much detrimental to the interests of the Muslim community as these steps have failed to do proper justice with the Muslims. of India. As a matter of fact Muslims still remain underprivileged and deprived class of citizens of India. The issue of advancement of Muslims is still not receiving deserving attention of the concerned authorities.

In the past, two Commissions were appointed, in exercise of the powers conferred under Article 340 of the Constitution, by the President of India, to determine the criteria to be adopted for considering sections of the people as socially and educationally backward classes. The first Commission headed by Kakasaheb Kalelkar was setup in 1950 and the second Commission, headed by B. P. Mandal, was appointed in 1978. Abdul Qaiyum Ansari M.L.A of Bihar was the only Muslim member associated with the first Kakasaheb Kalelkar Commission of 1950. No Muslim was, however, included in the Mandal Commission set up by the Janata Party led Central Government in 1978. These Commissions submitted Reports in March 1955 and December 1980. While determining the criteria for defining socially and educationally backward classes both the Commissions accepted caste as the main basis for determining backwardness.

Acceptance of caste as a criterion for social backwardness was vehemently opposed by some Members of the Kalelkar Commission in their notes of dissent. . In the forwarding letter to the President, Kakasaheb Kalelkar the Chairman of the Commission had mentioned that "his eyes were opened to the dangers of suggesting remedies on the caste basis when he discovered that it is going to have a most unhealthy effect on the Muslim and Christian section of the nation." The recommendations of the majority members of the Commission was a 'rude shock' to the Chairman Kakasaheb Kalelkar . "It drove him to the conclusion that the remedies suggested in the Report of the Commission were worst than the evil which they were out to combat." The report of Kalelkar Commission was rejected by the then Central Government as it felt that "it would be better to apply economic tests than to go by Castes". It was thereafter left to the discretion of the State Government to choose their own criteria for defining backwardness. Several States did set up their own Commissions or Committees for defining the criteria for backwardness and on the basis of such reports provided reservations under Article 15 (4) and 16 (4) of the Constitution. Some of these States agreed to treat Muslim community as backward class as a result of which the Muslims in these States could avail the benefit of reservations.

When the Janata Party Government came in power at the Centre, with Morarji Desai as Prime Minister and Atal Behari Vajpayee and L.K.Advani as Ministers of External Affairs and Information, the issue was reopened by the Centre. In December 1978 Morarji Desai the then Prime Minister of India announced a decision to set up a Backward Classes Commission with B.P. Mandal as Chairman and four others as Members. A perusal of the Reports of the Mandal Commission will show that the Muslim Community was badly let down by their own elected representatives and intellectuals in the matter of making effective representation, backed by logistics, for convincing the Commission about the backwardness of the community and the desirability of providing reservations to the Community under Articles 15 (4) and 16 (4). The Mandal Commission had invited Members of Parliament, Public men and experts to make submissions before Commission. Out of the 254 MPs who appeared before the Mandal Commission only 12 (4.72 %) were Muslims. Out of the 1,320 Public Men including experts from different States of India (Excluding Jammu & Kashmir) who appeared and placed their views before the Commission, only 58 (4.39 %) were Muslims. 66 persons appeared from Jammu & Kashmir out of which 27 (41 %) were Muslims.

The Mandal Commission came to the conclusion that 66.26 % of the total population of India consisted of Backward Hindu Castes ( including 22.56 % Sc & ST ) and that Forward Hindu Castes and communities accounted for only 17.58 %. Total Hindu Population was estimated to be 83.84 %. The population of Non Hindus ( Muslims, Christians, Sikhs, Budhists and Jains) was estimated to be 16.16 %.

The above findings of Mandal Commission means that 79 % of the Hindus belong to Backward Castes and that only 21 % of the Hindus (Brahmins, Bhumihars, Rajputs, Marathas, Jats, Vaishyas-Banias, Kayastha etc) are Forward Class Hindus. The Commission, however, proceeded on the 'assumption' that only 52 % of the Non Hindu Religious Groups were backward.

While making its final recommendations the Mandal Commission had accepted Caste as a criterion for identifying backwardness among the Hindus as it felt that " Castes are the building bricks of Hindu social structure". 

For identifying backwardness among the non Hindus the Commission had identified the following criteria.
(i) All untouchables converted to any non Hindu Religion ; and
(ii) Such occupational communities which are known by the name of their traditional hereditary occupation and whose Hindu counterparts have been included in the list of Hindu OBCs ( Such as Dhobi, Teli, Dheemar, Nai, Gujjar, Kumhar, Lohar, Darji, Badhai etc).

Mandal Commission was conspicuously silent on the issue of declaring the 

Muslim Community as a whole a Backward community. Very few Muslims were however deemed by the Mandal Commission eligible to be included in the list of other backward classes in the Non Hindu Categories. 

In addition to the prevailing reservations of 22.5 % for the SCs and STs ( in proportion to their population) the Mandal Commission had recommended reservation of 27 % for Other Backward Classes thereby increasing the quantum of reservations from 22.5 % to 49.5 %. The Commission had further recommended that "States which have already introduced reservations for OBCs exceeding 27 % will remain unaffected by this recommendation". 

In several cases the Supreme Court of India has held that the quantum of reservations under Articles 15 (4) and 16 (4) should remain below 50 %. Under the above circumstances there appears to be hardly any scope for any further reservation for the Muslims or any other religious community unless the Constitution of India is suitably amended or the recommendations of the Mandal Commission are suitably revised by the Government at the Centre. 

In some States as a result of the recommendations of Mandal Commission the quantum of reservation exceeds the limits of 50 %. This is considered to be unconstitutional. In its 1999 Election Manifesto the National Democratic Alliance has promised that the " reservation percentages, above 50%, as followed by certain states shall be sanctified through necessary legislative measures." Nothing has, however, been done so far by the National Democratic Alliance Government at the Centre and the stalemate still continues. 

Mandal Commission has dealt a severe blow to the hopes and expectations of the Muslim Community. The problems of the community have not been examined in a correct perspective. Though a few individual Muslims may be both socially and educationally above the general average the fact remains that as a whole, the Muslim community, apart from being socially and educationally backward, is very poorly and inadequately represented in State services. The purpose for which Articles 15 (4) and 16 (4) have been incorporated in our Constitution would not be achieved unless social justice is done with the Muslim Community. In order to achieve our goal of National Integration no community should be left isolated from the mainstream. The matter deserves serious consideration and attention. We have to promote a "fraternity assuring the dignity of the individuals and the unity and integrity of the Nation."
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