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

Reservation for Muslims
Of backwardness & discrimination

By
Iqbal A. Ansari 

Reservation in public services and educational institutions for any section of citizens seeks legitimacy on two grounds. One, to compensate for accumulated backwardness caused by deprivation of the group over a long period in the past, rendering its members incapable of equal competition, two, to neutralise the adverse effect of discrimination and biases against a group with distinct cultural, linguistic or religious identity, different from the majority, especially in a situation where the non-dominant minority resists the attempt at assimilation by the majority. 

The Indian Constitutional scheme envisages to provide special measures for both categories of people under two sets of formulations of SC, ST and OBCs for historically backward classes of citizens and for identity based minorities who face neglect and exclusion in the common public domain and the threat of assimilation in the separate domain of identity.

It has been my case that though the bulk of the present-day Indian Muslims is of indigenous origin, who continued to suffer deprivation after joining the Muslim fold owing to the continuity of their low esteemed occupations, after Indepence (1947) this bulk along with the Indian Muslims of non-indigenous origin have been collectively facing the disadvantages of discrimination- exclusion and even periodic violence for their being bearers of the common Muslim religious identity, irrespective of their class, occupation, biradari , sect and regional linguistic ethnic variations. 

It is this shared collective destiny of Muslims in India, irrespective of their horizontal and vertical divisions, that I have been concerned with in my work on minorities and Muslims —especially as they have been facing increasing threat to their life, dignity, freedom and equality since 1980s. Some champions of backward class Muslims have failed to comprehend this complex reality of the Muslim situation in India. 

One of them finds fault with my line of argument in the article on Constitutional validity of reservation for Muslims, as he does not seem to share this wide perspective on the Muslims, hence insistence on their ‘pound of flesh’ under Mandal regime, not realising that even that ‘pound of flesh’ is not achievable without making the case for only backward sections of Muslims getting their separate quota, whose validation will again require the argument based on the rights of minorities derived from the Advisory Committee of the Constituent Assembly’s minutes of the discussion on the phrasing of the present Article 16 (4), paras 80/ (c) and 83 of Indira Sahni judgment of the Supreme Court and para 3.7.1 and 3.7.2 of the National Commission To Review the Working of the Constitution (NCRWC).

That I am not insensitive to the grossly neglected lot of historically deprived backward classes of Muslims is borne out from the fact that I was the first to raise the demand from the Minorities Council’s forum for allocation of 6% reservations for Muslim backward classes under the Mandal Scheme (see Press Release and circular letter and Note of 2 September 1993 on the subject sent to forward and backward Muslims leaders including Mr. Ashfaq Husain Ansari, who did not show any interest in it, and had a sneering look at it, so smug he felt about the Mandal boon).

I have presented both dimensions of the Muslim case in all my writings since then, drawing attention to the inadequacy of the Mandal model for them. [See my pamphlet on Reservation For Muslims: Rationale and Modalities, 1994. See also Part III of the Note to NCRWC published in the MG. All the paras dealing with OBCs among Muslims in ch.10 of the NCRWC Report were highlighted in Human Rights Today Vol. vi No. 2/2002].

The Mandal Commission’s mandate and methodology made it adopt a rough and ready formula — qualitative and quantitative — based not on empirical study of the Muslim social reality but on deductionist logic, which made it fix grossly low level i.e. 52% of backwardness among Muslims. Secondly it applied for determination of backwardness, Hindu caste model while admitting that its wholesale applicability was questionable. 

More importantly it never occurred to Mandal Commission to go into the issue of discrimination, neglect and intolerance that Muslims routinely faced because of the strong sub-group loyalty of all Hindus and because of ‘otherness’ imposed upon Muslims especially in the Hindi belt and Gujarat. 

If the Commission’s concern for social justice had been extended to Muslims it should have recommended a separate quota for at least those Muslim groups, whom it had identified as OBCs. Why did Mandal’s concern for justice not make him recommend a separate quota for backward Muslims? The reason lies in distorted paradigm of secularism-communalism in the Indian political discourse, under whose spell it has been axiomatically assumed that secular Constitutional dispensation did not allow any reservation for religion-based groups, disregarding the fact that there are a number of religion specific provisions (including reservation for SC. Confined initially to Hindus only and later extended to Sikhs and Buddhists and, denied to Muslims and Christians) and disregarding the Jurisprudence of equality of treatment for members of groups who are unequal in terms of power, and disregarding the judgment in Indira Sahni case which clearly spelled out that “besides castes (whether found among Hindus or others) there may be other communities, groups, classes and denominations which may qualify as backward class of citizens. For example, in a particular state, Mulim community as a whole may be found socially backward. ” (para 83). [Incidentally Mr. Ashfaq Husain Ansari has denied the existence of any such para in the judgment in an article exposing my ignorance in an Urdu daily].

It is because of this widespread misconception that extending the benefit of reservations under Article 16 (4) to Muslims, would require amendment of the Constitution, that I sought the clarification from the NCRWC. Accepting my arguments the Commission gave its unambiguous opinion that “it is open to the state to make reservation (for minorities) if it is of the opinion that such reservation is necessary and justified”. We had not asked the Commission to give any recommendations on reservation for minorities.

I do not know if the likes of Mr. Ashfaq Husain Ansari still hold that reservation for Muslims cannot be provided for without amending the Constitution. In that case even reserving any quota for ‘backward Muslims’ only, will require amendment of the Constitution.

I did not express any opinion in my articles about whether it was more desirable to extend 5% reservation to all Muslims of AP or to confine it to backward classes among Muslims. My academic, not political, interest made me express the opinion that extending the benefit to all Muslims of the state of A.P. was Constitutionally valid which position has been upheld (as reported by the press) by the AP High Court.

I hold the opinion that in any formulation on reservation for Muslims the creamy layer, defined in terms of education, income and occupation, must be excluded irrespective of racial or country origin over a millennium, and that backwardness needs to be redefined taking into account social-economic changes among Muslims in the last 57 years.

Let us devote our attention to this reformulation of criteria of backwardness and creamy layer, which will take care of the apparently divergent claims from various sections of the Muslim community.

The champions of the two sections instead of wasting their energy in acrimonious debate, should try to explore how best to present the case of the backward and discriminated Muslim minority so that ends of justice are met. There is a need to devote united energies of Muslims to convince the die-hard secular political and intellectual class — from Gandhians to Marxists — that the fabric of united Indian nationhood will not get weakened by including the excluded Muslims in the national institutions.

Fortunately for us an opportunity for such an honest exploration for fairness and justice to all sections of Muslims is opening up in the form of the proposed Commission on Backwardness for Minorities, demand for which had been persistently raised by the Minorities Council.

It will be a fitting finale to this piece to quote the NCRWC Reports’ para 10.11.1 (d) which recommends that: “(d) An effort needs to be made to carry out special recruitment of persons belonging to the underrepresented minority communities in the police forces of States, para military forces and armed forces. This will instil confidence among minority populations as well as help them to develop responsible attitudes toward security issues confronting the nation.”
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