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The report of the National Commission to Review the Working of the Constitution

A critique of the report from a Muslim angle by Syed shahabuddin

In its report, submitted on 31st March, 2002, the National Commission to Review the Working of the Constitution has dealt with a number of issues of great concern to the Muslim community but unfortunately in a rather perfunctory manner. On most of the issues that it has touched, it has not taken a clear and definite position. Even when it has made a positive recommendation, it seems to have done so rather halfheartedly. However, considering that most Muslim organizations of national eminence boycotted the Commission (including Jamaat-e-Islami Hind, Jamiat Ulama-e-Hind, All India Milli Council and All India Muslim Personal Law Board) and did not respond to its questionnaires or took the initiative to place their points of view before it, Muslims should be thankful for the treatment that they have received. To the best of my knowledge, only All India Muslim Majlis-e-Mushawarat was in regular touch with the Commission. However, the Minorities Council, ably represented by its Secretary General the indefatigable Prof. Iqbal Ahmad Ansari, made a number of submissions to the Commission. In doing so Prof. Ansari harnessed the services of a number of eminent Muslim personalities including Mr. Saiyid Hamid, Mr. Hamid Ansari, Mr. Shahid Mehdi. Some eminent Muslims like Prof. A.M. Khusro were invited by the Commission in their personal capacity. 

The Muslim issues dealt with by the Commission can be broadly classified into two categories: first, the issues which it decided not to look at e.g. the educational rights of the minorities (Article 30), the right to propagate religion (under Article 25) and the evergreen question of introduction of Uniform (Common) Civil Code (Article 46). Secondly, the issues which it did consider and on which it came out with a view or a recommendation, howsoever weak, such as reservation in public employment, particularly in the security forces (Article 15 and 16); representation in the legislatures, population cut-off limit for official use of minority languages (Article 347) or of Mother Tongue as medium of instruction at the primary level (Article 350A).

On the question of reservation in favour of religious minorities under Articles 15(4) and 16(4), the Commission has given a positive and helpful lead that’ under the existing provisions, it is open to the State to make reservations if it is of the opinion that such reservation is necessary and justified’. So while the Commission has not made a positive recommendation, as the Muslims would have liked, it has done a great service to them by placing it on record that such reservation would not be unconstitutional as was often claimed. This opens the door for pressure-building by the secular parties and the Muslim community on the Central and the Governments of States of Muslim concentration to appoint a Commission to establish whether the Muslim community and/or any section thereof constitutes a Backward Class and, if it does, to determine the quantum of reservation in its favour as has already been done in Karnataka and Kerala.

As regards the linguistic minorities the Commission has recommended that the phrase ‘substantial proportion of the population’ in Article 347 of the Constitution be substituted by ‘not less than 10% of the population’. Thus it has tried to concretize the basic norm for use of a minority language by the state for specified purposes in specified areas. The recommendation however flies in the face of the fact that no linguistic minority in any state at present constitutes 10% of the state population! In the case of Urdu, if all those whose Mother Tongue is Urdu, register themselves as such in the Census, AP, Bihar, Karnataka and UP are likely to make the grade and perhaps also Maharashtra. And the Commission has not expanded the concept to include districts or sub-districts or blocks or municipal towns or Panchayats in the State, which fulfill the 10% condition, if the State, as a whole, does not. 

Secondly, the Commission recommends Mother Tongue as the medium of instruction for elementary education. This is a little more than linguistic minorities have been demanding; they want it only at the primary level as they would not like their children to face a handicap at the post-primary stage. But all linguistic minorities in any State would also like their children to learn their Mother Tongue through school as the First Language which should be compulsory in order to attain due proficiency. This legitimate demand is ignored by the Commission.

Thirdly, the Commission recommends the retention of the office of the Commissioner for Linguistic Minorities which the Vajpayee Government wished to abolish. But, as it is, but not that it be given any more authority. The Commission has asked the Government to ‘collate the recommendations of the Commissioner for Linguistic Minorities and take substantive action’ but this is like an arrow shot into the open sky because it does not even recommend that he should have the authority to demand annual reports from the State Governments and that annual reports be discussed in the Parliament!

The Commission recognises the educational backwardness of the Muslim community and recommends special programme for the educational uplift of the backward minorities. Muslims have had at least 20 years’ experience of such programmes which are but cosmetic in nature and which have failed to make any impact. The Commission has not cared to examine the real causes of educational backwardness – at the school level which matters – in terms of curriculum, syllabi, the medium of instruction, the contents of textbooks, school culture and the impact of the policy of ever deepening saffronisation of education. The Commission even fails to see the relative deprivation of Muslim concentration areas in term of school facilities. Why couldn’t the Commission have laid down that the curricula, the syllabii, the textbooks, the school culture should be thoroughly secular so as to attract students from all religious groups and that primary, middle and high schools should be established by the State everywhere, at all levels, according to the accepted national norms?

The Commission has made a number of recommendations to protect and promote the interests of the SC, the ST, the Backward Classes, the Minorities and other Weaker Sections(?) to move the society towards egalitarianism. But while the Commission has suggested specific measures to strength the constitutional position of the SC’s, ST’s and the BC’s, it has totally ignored the minorities. For example, when it proposes to add, in the Concurrent List, ‘the development, welfare and promotion of SC’s, ST’s, BC’s and Women’, the religious minorities have been forgotten. Similarly, when the Commission recommends reservation for women in Union and State Legislatures and within it a sub-quota for the women of the Backward Classes (excepting those over-represented), again it slips on the under-represented women from the Muslims, the biggest religious minority. Is it amnesia or deliberate consideration?

The Commission has done a great disservice to the Muslim community by making a persistent effort to divide the community which is, as a whole, reeling under pressure of majoritarianism, communal bias and prejudice and genocidal violence. While referring to existing constitutional safeguards the Commission sees the need for ‘a breakthrough in educational and economic safeguards’. However, this gracious vision of the Commission is clouded by its overwhelming desire to divide the Muslims into the backward Muslims and the others and then, shortsightedly and unjustly, it goes on to integrate the Backward Muslims with the Backward Hindus. Such integration only serves to provide a bigger population base for the Backward Classes and, therefore, a bigger quota. A common quota large or small hardly benefits the Backward Muslims who cannot stand in competition with the relatively advanced Backward Hindus, just as the relatively More Backward Hindus (MBHs) cannot. One hesitates to share the optimism of the Commission that ‘the programme for the development and empowerment of the Backward Classes will help the development of the masses of religious minorities’. 

In the same manner Muslims, even the so-called Backward Muslims, have been generally linked with the BC’s for appointment of judges in higher judiciary, for allocation of business facilities, for rural employment programme, etc. The problem lies in that while all Muslims form a Backward Class in the national context, the relatively more advanced Muslims who are in a position to throw up eligible candidates are left out in the cold and those who are not, are made eligible! So the State wishes to be considerate and generous but the Muslims are unable to show up! The Commission lets in a shaft of sunlight in the overall gloom but quickly covers it with a dark screen.

The Commission recognizes the political under-representation of the Muslims as such, but does not propose any panacea and leaves it to the political parties ‘to build up leadership potential in the community’, once again, emphasizing the BC’s, SC’s (?) and ST’s among them.

Happily, the Commission sees the need to make an effort to make special recruitment of Muslims (not Backward Muslims only, thankfully) in the police, para-military and armed forces but once again fails to recommend any systemic change or a quota based on population, leaving the Muslim aspirations to the tender mercies of the recruitment officers.

On the question of introduction of a uniform civil code, the Commission has not recommended, as was apprehended, that the State should give it priority. To that extent, it does not ask for the reversal of the existing government policy. But it has taken a misconceived stand by categorising questions of marriage, divorce and succession under civil law or common law, while the fact remains that in religious societies, particularly in the Muslim society, these matters are explicitly governed by the mandates in scriptural texts. So how can they be separated from religion? How can the State subvert the faith? Moreover, if the so-called common Hindu Code itself is full of exceptions to accommodate all those who profess to be Hindus, how can multi-religious India have a common civil code? There is a case for erecting a parallel but optional structure of common civil code. There is also a growing desire in the Muslim community for codification of Muslim personal law and for interpreting the Qur'anic mandate to meet the contemporary situations but by no stretch of imagination, can one envisage a common code for all religious groups. Evidently the Commission saw the problem but decided to sail with the prevailing wind and pronounce a sermon to satisfy the assimilationists.

On the question of national culture, once again the Commission has handled very superficially the problem of composite culture, which consists of many strands and which is ever dynamic. The Commission should have clearly pointed out that the Indian culture of today cannot be identified with the Hindu culture or the Islamic culture of yesterday; that a national culture is in the process of constant evolution and it will change with the passage of time, through the synthesis of many regional and sectoral cultures and even foreign cultures, as in the past.

Similarly, by maintaining silence on the question of ‘conversion’, the Commission has left the field open for those who demand the repeal of the right to propagate religion, who question the fundamental right of a person to choose his faith, who make a false distinction between ‘Ghar Wapsi’ (conversion of the tribal people to Hinduism) and conversion to ‘foreign religions’, Christianity and Islam, and who would like to have a central law against change of religion on the model of the Freedom of Religion Acts of Orissa, MP and Arunachal Pradesh.

Similarly, Article 30 is under attack from all sides and in practice it is becoming difficult to establish minority educational institutions as they face many obstacles in recognition, affiliation and financial assistance. There is increasing official intervention in their administration through imposing impossible conditions on admission and recruitment of teachers. A debate has been raging to limit the scope of Article 30 to religious or cultural institutions and, in a way, to delete modern education from its purview. Since the Commission has taken note of educational backwardness of the minorities, particularly of Muslims, it should have applied its mind not only on emphasizing the role of Article 30 but on facilitating its application with a view to encourage the community to invest its resources in education. By its silence, the Commission has given full freedom to the anti-minority pressure for repealing or limiting the scope of Article 30.

One expected much more from the Commission but one understands its limitations. The review was largely a political exercise, undertaken at the behest of a Government which had its own agenda and which had no particular interest in the welfare of the religious minorities, particularly those following religions of ‘foreign origin’ like the Muslims and the Christians. Obviously, the Commission was divided on tackling the real grievances and the legitimate aspirations of the Muslim Indians but the anti-Muslim lobby in the Commission carried the day. So the Muslims were fobbed-off with some sweeteners, some good wishes, some tantalizing visions of the possible, but left largely to fend for themselves, to stew in their own juice. Who cares? They have yet to make the full payment for the ‘crimes’ of their forefathers and for the ‘sin’ of Partition!

Though the Commission plays the old game of Hindu communalism – divide them, weaken them and assimilate them, one by one, and does not grant the status to the most important religious minority, the Muslims, of a separate backward class, several of its positive recommendations are likely to benefit the Muslims just as they benefit the other weaker sections like the SC’s, the ST’s and the OBC’s. Therefore, the Muslim community should not lose sight of several other positive recommendations of the Commission which are likely to be of benefit to it as to the other communities and to all citizens.

To take a few examples, Recommendation (3) extends freedom of expression [Article 19(1)(a)] to include, "freedom of the press and other media’ and ‘freedom to seek, receive and impart information and ideas’. Similarly, the proposed Article 19(2) enables the State to make laws to impose reasonable restrictions, in the interest, inter alia of ‘defamation or incitement’ to an offence. In the background of the current drive to vilify Islam or demonize Muslims and of the recent carnage in Gujarat, the value of these provisions cannot be exaggerated. Furthermore, the proposed addition to Article 21 (Recommendation 6) provides for an ‘enforceable right to compensation to a person’ who has been illegally deprived of his right to life or liberty. Recommendation 10 adds a new Article which prohibits detention beyond a maximum period of six months. Recommendation (13) recasts Article 300-A and lays down that acquisition of property shall be only for a public purpose. This bars the Sangh Parivar’s demand that the Babari Masjid site be acquired, if they lose the title suit and given to it for constructing the temple – which would be a denominational, not a public purpose.

Recommendation (16) provides the right to free education to every child upto the age of 14. This is bound to benefit the Muslim community whose literary and educational level is below the national figure. Recommendation (23) proposes a National Education Commission to report to the Parliament annually on progress of compulsory education.

Recommendation (25) provides an inter-faith mechanism under the National Human Rights Commission to promote inter-religious harmony and social solidarity, particularly in sensitive areas.

Recommendation (28) provides for necessary steps by government to assure the right to freedom of religion and respect for rights of minorities.

Recommendation (33) bars election campaign on the basis of caste or religion and prohibits any attempt to spread caste and communal hatred during elections.

Recommendation (52) vests intra-State delimitation in the Election Commission and favours rotation of reservation.

Recommendation (109) guarantees right to information and ensures free flow of information to citizens in the interest of transparency. This is bound to help the weaker sections.

Recommendation (177) recommends a separate fiscal domain for Panchayats and municipalities. Fiscal devolution helps the weaker sections because they can assert their legitimate right to an equitable share at the local level.

Recommendation (213) includes minorities in the citizens charters to be prepared by every service-providing government agency. 

Similarly recommendation (239) emphasizes the desirability of providing for the protection and promotion of the interest of all weaker sections and includes minorities in the list.

The above recommendations have been culled out from the report only to emphasize that the destiny of the minorities is inseparable from that of the nation as a whole, and that while their life, honour and dignity must be protected in times of crisis and their identity must be respected at all times, the Constitution as well as the laws of the land have to be so framed that they constitute a ray of hope and fulfillment for the minorities. 

No doubt, the views and the recommendations of the Commission have no legal status. Perhaps that is why the Government has merely reserved the Report for public debate. 

As for matters of concern to the Muslim Indians, one hopes that little though their gains are, and, that too, largely indicative and not prescriptive, the Muslim organizations, armed with the arguments provided by the Commission, shall carry on their battle for equality and dignity, not only for themselves but, in concert with the other weaker sections, for all deprived and marginalized communities.
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