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

The Constitution & reservations for minorities
Reservation for Muslims in AP - ii

It is gratifying to see that our founding fathers' ideas on the principle of affirmative action were much ahead of the time. The nuances of the discussion also reveal that they were capable of recognizing the need to provide for reservation on the one hand in favour of underrepresented minorities as minorities, because of the tacitly assumed reality of their getting neglected or excluded, on the other hand they recognized the need for compensatory discrimination in favour of classes/castes historically deprived and kept backward over a long period because of the hierarchical caste system.

The Review Commission may recommend appointing a Commission to determine the nature and modalities of exclusionary - discriminatory practices on the basis of inter alia, religion in our country. This will be in keeping with the Indian Government's commitment to the world community given in the Durban Conference (August - September 2001) to periodically take stock of measures to end discrimination and submit report to the office of UN High Commissioner For Human Rights.


It is well that the intention of the framers of the Constitution as reflected in the Constituent Assembly debate, has been appreciatively and illustratively noted in the Supreme Court judgment delivered by Chief Justice MN Venkatachaliah, AM Ahmadi and BP Jeevan Reddy, J.J. on reservation for Backward Classes, in the following words:

It is significant to notice that throughout his speech in the Constituent Assembly, Dr. Ambedkar was using the word "communities" (and not 'castes') which expression includes not only the castes among the Hindus but several other groups. For example, Muslims as a whole were treated as a backward community in the princely State of Travancore besides several sections/denominations among the Christians. The word "community" is clearly wider than "caste" - and "backward communities" meant not only the castes wherever they may be found - but also other groups, classes and sections among the populace. 9

In para 83 the judgment notes that "in a particular State, Muslim Community as a whole may be found socially backward."

III
In view of the above it should be possible to adopt special measures including reservation in services for a religious minority like Muslims in India who are not adequately represented in almost all sectors of public services. In their case both the reasons of affirmative action exist: that they are a vulnerable religious minority irrespective of their social and educational status who may be negatively stereotyped and treated as suspect and subjected to neglect and exclusionary practices; secondly the bulk of Indian Muslims being of indigenous stock, did not en mass register any upward mobility by virtue of their conversion to Islam during medieval period of India's history. They suffer from historical backwardness caused by deprivation like other lower caste groups among Hindus.

The Mandal Commission takes into cognizance only historical backwardness among Muslims, without going into the other vital consideration of their contemporary marginalization caused by their situation of a vulnerable negatively stereotyped religious community. Mandal Commission's findings on religious minorities also suffer from the serious flaw, which has not been generally noted, that unlike findings on Hindus, they are not based on any empirical study. He admits the difficulty of identifying backwardness among non-Hindu communities and adopts the rough and ready criteria for identifying non-Hindu OBCs" on a deductionist basis.10 No commission has been appointed to study the real nature and extent of historical backwardness among religious minorities in India, nor has any existing Commission undertaken the work of ascertaining the nature, extent and modalities of exclusionary/discriminatory practices against them although study of discrimination against minority is one of the powers and functions of the National Commission For Minorities under its Act (1992), and the protection of the right to equality and non-discrimination is one of the crucial responsibilities assigned to the National Human Rights Commission. The Government of India on the other hand does not officially publish communitywise census data on their differential socio-economic condition, though it does publish the differential rate of growth of each religious community. However the fact of gross underrepresentation of Muslims has been documented, and is universally admitted.11

In spite of the clarifications made regarding proviso (4) of Article 16 and in spite of accepted ground realities of Muslim underrepresentation, religious minorities have been excluded from its scope as minorities, because of the widely shared opinion that such a policy will be anti-secular and therefore unconstitutional. Even those caste-like occupational biradaries of Muslims which have been included in the OBC list have not been provided any separate quota. They are required to compete with their Hindu counterparts, where both reasons of comparative lack of talent and exclusionary practices make chances of Muslim OBCs getting their share rather dim.

This marginalization has engendered a sense of alienation and on occasions frustration among bulk of Muslims, especially the rising educated middle class, who find that they have to compete with top talented caste Hindus for the fewer jobs which are unreserved. This state of mind is unhealthy for any multicultural society, where lack of integration, provides fertile ground for communal isolation and worse.

So far as the existing provisions of the Constitutions are concerned, it has to be clarified that no amendment of the Constitution is required for extending the benefit of reservation to religious minorities, and that any minority which is socially and educationally backward as well as under-represented in the services can be provided benefits of reservation under Articles 15(4) and 16(4) as minority. However in view of widespread misperception about the constitutionality of application of reservations to minorities, it will be better to add minorities in the text of the two Articles.

In case it is found that the ruling classes in India, cutting across party lines, are still not prepared to get the idea of reservation for religious communities dissociated from the variety of ethno-religious nationalism that is held to be responsible for partition, the minimum that is expected of them is to provide reservation for minorities on the basis of backwardness to be determined afresh on the criteria of education, income, and occupation. But because of their vulnerability Muslims will be assigned separate quota not bracketed with Hindu OBCs.

While addressing the issue of reservation for minorities the Commission may keep in view the measures taken in recent years in Britain for better integration of ethnic and religious minorities by requiring all Departments, especially the home and police, to target due recruitment of minorities gradually over periods of three years, five years and ten years. This policy is based on the findings of an official Commission which revealed the existence of institutionalized discrimination based on religion in the British public life.12

The Review Commission may recommend appointing a Commission to determine the nature and modalities of exclusionary - discriminatory practices on the basis of inter alia, religion in our country. This will be in keeping with the Indian Government's commitment to the world community given in the Durban Conference (August - September 2001) to periodically take stock of measures to end discrimination and submit report to the office of UN High Commissioner For Human Rights.

Rights of Minorities & Deserve Attention
The recommendations of the NCRWC related to minorities have not received any attention of the public or the government. The human rights class has never considered the issue as worthy of its attention. Hence the prevailing confusion, which helps the political class to continue denying minorities the benefit of all affirmative action programmes, whereas it is they, especially Muslims, who are subjected to exclusion, discrimination, neglect and intolerance -- as demonstrated by the call for their social-economic boycott in Gujrat not only in 2002 but also during riots in 1969.

Muslims in India have suffered on both counts i.e. historically accumulated backwardness and present day discrimination. Theire bulk comes from occupational groups which were denied opportunities in the past. In post independence India they, irrespective of their foreign or indigenous origin or caste like features, have been subjected to exclusion and discrimination because of the stigma of partition and because of the supposed wrongs of history committed by their supposed ancestors:

Though the case of Muslim backwardness, their under-representation and their being discriminated is commonly known, yet the Government of India may constitute a Commission to study and report on all aspects of their status and make recommendations for fulfilling the constitutional promise of justice to them and to other minorities or sections of minorities including persons of Dalit origin professing non-indigenous religions.

Will friends of minorities, both in political parties and in human rights groups address the issue and state their position, especially in terms of Durban Declaration and POA 2001? 

Iqbal A. Ansari
iqbalansari2001@hotmail.com

Notes
1. Advisory opinion on Minority Schools in Albania, 6th April 1935, Series A/B, No. 64, p-19
2. General Assembly Resolution 47/135 of 18 Dec. 1992
3. (1994) 15 Human Rights Law Journal (HRLJ) p.234
4. E/CN.4/Sub.2/AC.5/2001/2
5. Para 111 of the unedited text of the Declaration adopted by the World Conference Against Racism on 8 September 2001
6. Shiva Rao, The Framing of Indian's Constitution: Select Documents Vol. II, p.259
7. ibid. p.259 
8. ibid. p.262
9. Para 80(C) of the judgement on Writ Petition (Civil) No. 93 of 1990 delivered on 16 Nov. 1992
10. The Second Backward Classes Commission Report 1980 para. 12
11. For the status of Muslims and other minorities in terms of their representation in services and other sectors see the following Reports: (i) Report on Minorities: Volume I & II by High Power Panel On Minorities, S.C., S.T. and other Weaker Sections, Govt. of India, New Delhi, 1993; (ii) The Muslim Situation In India, ed. Iqbal A. Ansari, I.O.S., New Delhi; (iii) National Sample Survey, 43rd Round Survey Report (1987-88), New Delhi; (iv)Abu Saleh Shariff, Relative Economic and Social Deprivation of Indian Muslims, Paper Presented in a Seminar Muslims In India Since Independence, I.O.S., New Delhi 28-29 March 1998.
12. Race Equality - the Home Secretary's Employment Targets, Home office, London, 1999 pp. 6-30

(Concluded)

Part I The Constitution & reservations for minorities - i

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