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Published in the 1-15 Aug 2004 print edition of MG; send me the print edition

Reservation for Muslims is a constitutional need

By Abdul Hafiz Gandhi

Diverse opinions have cropped up on the recent initiative of AP government to provide five percent reservation to the Muslim community in educational institutions and government jobs. Pandemonium over the issue has eclipsed the genuine concerns, which Government Order 33 seeks to redress. Reservations made on religious basis may give rise to fissiparous tendencies and would result in disparaging the ideals of secularism and non-discrimination, but going into the historicity and sociology of pathetic condition of the Muslim community one may come to the logical conclusion that providing reservation to it would further the concept of equality envisaged in Article 14 of our Constitution. The whole philosophy of equality revolves around the premise that equality should be among equals and unequals be treated differently. Legislations may be enacted for unequals treating them as a separate class. The entire reservation policy hinges on this rationale. 

A pertinent question arises here: when SC/ST, a majority of whom belong to the Hindu community or its derivatives, reap benefits of reservation, why no accusing finger is raised and why no self-appointed defenders of Hindutva come out to protest that these caste-based reservations pose a serious danger to the soul of secularism. Why no hue and cry is raised as the reservation for the last 56 years is creating conditions favourable for the establishment of a State where every seat of power will be controlled by persons belonging to the Hindu majority (either through reservation or otherwise). The most questionable part of the whole controversy vis-à-vis Muslim reservation is the partisan attitude of some pressure groups. 

Muslims are not better off today than any other oppressed, socially, educationally and economically backward class of citizens and have also been the victim of the gross neglect of successive governments, especially over the last 56 years. Statistics show a grim and sorry state of affairs with regard to the social and economic advancement of the Muslim populace in this country of vast diversities. What to talk about whole India, in AP itself 66 percent of 6.4 million Muslim population lives below the poverty line. The total Muslim literacy rate is eight percent while a negligible four percent women are literate. This data applies to other states also. It was for this reason tha the Saxena Commission recommended a fixed percentage for Muslims in educational institutions and government jobs to improve the lot of the most neglected and deprived sections of the society. 

The opposition to the demand of Muslim reservation is based on the claim that they had been the rulers of the country for centuries, and hence, cannot be victims of historical oppression and suppression. This brings us to an important point, ‘Is the reservation to SC/ST logical on the ground that their ancestors were subjected to social and economic suppression centuries ago, so the offspring who have not even dreamt of the stigma and effects of those atrocities be given reservation?’ This logic of applying ointment to the wounds afflicted to the forefathers is illogical and without any merit today. But law is law and these victims of history are enjoying the fruits of the constitutional affirmative action. It will be erroneous to presume that mere belonging to the religion of the ruler would make you socially, economically and educationally well off. In those days Muslims also were suffering the agony of poverty and exploitation at the hands of the rulers who happened to be Muslims just as Dalits are persecuted today at the hand of those who too are Hindu. 

The long journey of India from 1947, towards establishing an egalitarian and non-communal nation, has been marred by biases and prejudices against the Muslim community. It has suffered irreparable losses during the last 56 years with regard to its social, economic, educational, religious and political status. The strength of the community has gone down to negligible figures in the years that followed. The 33 percent of Muslim employment in government jobs in 1947 has drastically and unfortunately registered a decline of 31.5 percent, reducing it to approximately 1.5 percent. Is this not breach of promise and security? 

Nationalism and nation-building needs to be harmonious. Reservation to Muslims would certainly increase their participation in nation-building resulting automatically in the development of the feeling of patriotism and nationalism in the Indian Muslims.

A good and evolving democracy is that, which protects the interests and the well-being of the minorities. The phenomenon of employing affirmative actions for the minorities is not new to world democracies. Even in US, the policy of affirmative actions is deep-rooted. It has been the consistent policy of the America to give reservation to its black-American minority in educational institutions. US Supreme Court upheld the admission of a black-American boy in the law department of Michigan University, where he was admitted on a low merit. This resulted in a denial of admission to a white American having higher merit. When this matter finally reached the Supreme Court, it held the admission of black-American valid and constitutional on the ground of affirmative action. In India minorities are not given their due share which they deserve in the policy-making and administration of the nation. Several commissions have recommended reservation in paramilitary and police forces on the basis of religious leanings so as to reduce the communal biases and prejudices in the forces against people of a particular religious identity. This, if done would prove to be a protective wall to prevent Gujarat like situations from raising their deadly heads every now and then. 

Our Constitution has provisions which can come to the rescue of Muslim community and to the government of AP. Art 15(a) of the Indian Constitution provides, State can make special provisions for the advancement of any socially and educationally backward class of citizens. Perusing this article, a fine conclusion is that, if any class of citizen is educationally and socially backward, Constitution encourages the State to make special provisions for the advancement of that section. Muslims are, no doubt, educationally and socially backward and therefore, they are legally entitled for beneficial measures like the one bestowed by the AP government. Not only this, Art 16(4) even goes further to help out those sections which due to certain reasons out of their control, could not find State employment. Under this article, State is empowered to make positive affirmative measures like reservation in 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. This article even dispenses with the pre-condition of being educationally and socially backward as is the case with Art 15(4). One need not be educationally or socially backward, but the condition is inadequacy of representation in the State employment. Muslims by no stretch of imagination, be considered to be adequately represented in the State employment. If AP reservation is seen with the legal eyes, one would not find any incongruity in the decision of giving five percent reservation. 

The State is under constitutional duty under Art 46 of the Constitution of India to promote the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation.

There is no denying the fact that reservation as a tool for advancement of a community cannot be used perpetually. It must be a temporary measure which should be discountinued if the purpose is achieved. Muslim reservation should also be made on this premise. It should automatically come to end on the expiry of a certain period. Perhaps this was the intention of the framers of the Constitution. There should be one more rider. The benefits of reservation should be restricted to those Muslims whose taxable income does not exceed Rs. one lakh a year, i.e., the “creamy layer” must be discouraged from reaping these benefits. The fruits must go to the deserved ones only. It should not be like SC/ST reservation, where all the advantages are for those who do not need them now, and the deserving are left to grope in the dark.

It is high time that, when people are demanding reservation even in the private sector, it will be quite immature and unreasonable to preclude and discourage Muslims from getting it in the public sector and State-run educational institutions. 

It is for certain, that if Muslims are denied benefits of reservation, nationalism and nation-building will remain two alien and irreconcilable concepts. Educational, social and economic advancement of Muslims through reservation is the demand and necessity of our time. UPA-led government must come up to convert into reality the promise made to the Muslims in the Congress manifesto. This is the testing case for the Congress and its parivar. 

The writer is an advocate in Delhi High Court and may be contacted at

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