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Published in the 16-31 Aug 2004 print edition of MG; send me the print edition

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

The Andhra Pradesh Commissionerate of Minority Welfare submitted its Report to the Government which reveals 'pathetic state' of the socio-economic condition of the Muslim community. Its findings include the following :

(i) Muslims below poverty line with an annual income of Rs. 1100/- or less: 65%

(ii) Muslims with an annual income of Rs. 44,500/- or less: 16% 

(iii) Literacy rate among Muslims: 18% 

(iv) Literacy rate among Muslim Women: 4% 

[General literacy rate in A.P.: 44%]

On the basis of this Report the Government of A.P. issued a G.O. (Ms No. 33) on 12 July 2004 declaring Muslims as BC(E) and reserving five per cent government jobs and seats in educational institutions for them. The G.O. has been challenged in the Andhra Pradesh High Court on various grounds. A Division Bench comprising Chief Justice, Devinder Gupta and Justice Ramulu, stayed the operation of the order, referring the case to the full Bench. The A.P. Government has subsequently altered the G.O. limiting the benefits to socially and educationally backward classes among Muslims. This may have been done to meet the objection that extending reservation to the 'entire Muslim community' may not be valid under the Constitution which uses "backward classes" in Articles 15(4) and 16(14). In this regard we publish the representation submitted by the Minorities Council on this particular issue to the National Commission For Review of the Working of the Constitution (NCRWC) headed by Justice MN Venkatachaliah, and a brief account of our interaction with the Commission, which resulted in the Commission accepting our plea that 'classes' used in Articles 15(4) and 16(4) was an inclusive term applicable to minorities as borne out by the drafting history and the debate in the Constituent Assembly on the issue. The judgment of the Supreme Court in the Indira Sawhney (Mandal Commission) case has also taken note of this 'inclusiveness' of 'classes'. We are reproducing our Note and related documents, which establish the case of Muslims for reservation under Articles 15(4) & 16(4) as a neglected and excluded minority as well as a backward class of citizens not adequately represented in public services and in education.

The Review Commission Considers 

'Classes' Inclusive


During my interaction with the NCRWC on behalf of the Minorities Council, which had submitted a comprehensive Memorandum to it,' my plea that Article 16(4) was applicable to minorities, was accepted. The Chairman, Justice MN Venkatachaliah readily agreed that the intentions of the framers and drafting history of the phrasing, the debate in the Assembly and past practice -- as well as norms under human rights-law all required that underrepresented minorities should get the benefit of reservations under Articles 15(4) and 16(4). I still submitted that in view of widespread misinterpretation of the clause, the NCRWC may either recommend the amendment by adding 'minorities' before 'backward classes' or else it may give the explanation that no amendment is required for extending the benefit of reservation to minorities' if and when considered desirable. The NCRWC thus included the following recommendation:

3.7.1 There was a plea on behalf of some minority communities for an express provision for reservation in favour of minorities both in articles 15(4) and 16(4). The Commission, upon due consideration of the representations, felt that no special provision was necessary inasmuch as, under the existing provision of articles 14, 15 and 16, it is open to the State to make reservation if it is of the opinion that such reservation is necessary and justified.

3.7.2 The Commission noted that the ultimate aim of affirmative action of reservation should be to raise the levels of capabilities of people of the disadvantaged sections and to bring them at par with the other sections of society.

I
Recourse to special measures like reservation in educational institutions and in public services to enable minorities based on religion, culture and language to effectively enjoy their equal human rights is now universally accepted, as enunciated by the Permanent Court of International Justice (PCIJ) in 1935 in Albania School case, and incorporated in Article 8(3) of the UN Declaration on Rights of Persons Belonging to National or Ethnic, Religious And Linguistic Minorities (1992). The PCIJ observed: "There must be equality in fact as well as ostensible legal equality in the sense of the absence of discrimination in the words of law. Equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations.1 It further underlined that "equality between members of the majority and minority must be an effective, genuine equality." The principle has been also incorporated in the UN Declaration on the Rights of Persons Belonging to Minorities (1992). Article 8(3) of which states: "Measures taken by States to ensure the effective enjoyment of the rights set forth in this declaration shall not prima facie be considered contrary to the principle of equality contained in the Universal Declaration of Human Rights".2 Happily the judiciary considers this as a settled principle of jurisprudence in India.

The UN Human Rights Committee's comments on Article 27 of the International Covenant On Civil and Political Rights (ICCPR) (1994) underlines the necessity of positive measures by states and concludes that protection of rights under the Article puts specific obligation on state parties.3 Though rights under Article 27 of ICCPR are confined to identity, it is now widely recognized that even those identity rights cannot be enjoyed without full public participation of minorities in the polity, economy and national development.

Prof. Asbjorn Eide's official Commentary to the Declaration on the Rights of Persons Belonging to Minorities notes that "there is often a risk that minorities, due to their limited number compared to majority and for other reasons may be subjected to exclusion, marginalization or neglect. In other cases, persons belonging to minorities are neglected in the economic life of the society. Article 4.5 requires that this should not happen.4 This disability provides justification for special measures. The Commentary on Article 8(3) which validates any such measure, notes that they cannot be considered impermissible discrimination.

The Durban Declaration and Programme of Action (2001) adopted by the World Conference Against Racism, whose Agenda included intolerance and discrimination on the basis of religion and ethnic origin recognizes the "necessity of special measures or positive actions for... Persons vulnerable to intolerance in order to promote their full integration into society", and "to encourage equal participation of all racial and cultural, linguistic and religious groups in all sectors of society and to bring all onto an equal footing. Those measures should include measures to achieve appropriate representation in educational institutions, housing, political parties, parliaments, employment, especially in the judiciary, police, army and other civil services, which in some cases might involve electoral reforms, land reforms and campaigns for equal participation.5

The obvious conclusion of all these standards set forth in the international human rights instruments, is that special measures, including legislation, enabling adequate participation of religious, ethnic and linguistic minorities, are not contrary to the principle of equality or of secularity of the State. Both these principles rather become abstract formal legal principles unless equality of treatment of all persons irrespective of community affiliation, is ensured through special provisions for the weaker sections and vulnerable groups.

II

It is well that the leaders of the Indian Freedom Movement led by the Indian National Congress were fully conscious of this vulnerability and disadvantage of religious minorities in India. Assurances were given to them for providing adequate safeguards for protection of their rights, including their right to adequate representation in public services. During framing of the Constitution this promise was fulfilled by introducing provision (4) under Article 16. Its drafting history shows that basically it was conceived of as a special measure empowering the State to provide for reservation in public services for minorities who were not adequately represented. Subsequently the word 'classes' was preferred so that besides religious minorities sections among Hindus not adequately represented in services may also enjoy the benefit of reservation as explained by KM Panikkar who owned responsibility for changing the word from 'minority' to 'class'6.

Suggestion was made by Shyama Prasad Mookerji to consider adopting the phrase "minorities and other classes". On which Chairman Sardar Patel observed that "Classes cover that".7
The following part of the illuminating discussion on the choice of the appropriate expression that took place in the Advisory Committee deserves careful attention.

Frank Anthony: What is the objection to "classes and minorities"? The classes will refer to Scheduled Classes.

C. Rajagopalachari: It is sufficiently described here: "those who are not adequately represented."
Frank Anthony: Why should we fight shy of using words which have the sanction of law and usage? We can make it more specific.

C. Rajagopalachari: Just as we do not say citizens and persons. If one word is wider, we omit the smaller word.

K.M. Panikkar: We may put it "classes including minorities."
Chairman: Minority is included in classes.

Frank Anthony: This is my amendment. I move in favour of "classes and minorities."
Ujjal Singh: "Minorities and backward classes."

Chairman: This is simple English. Classes include minorities. This is absolutely unnecessary. It is as clear as daylight. The committee has come to the unanimous conclusion and we also feel classes include minorities. There is no need to suspect. The whole basis of the provision is minorities. You say the State will exclude minorities?

Frank Anthony: We are not suspecting the present leaders. We do not know who the future leaders would be.

Chairman: No leader would be stupid as to interpret that classes do not include minorities.
Frank Anthony: We have used the words elsewhere.

Chairman: Anybody will say that classes is a wider term. It is better to use a wider word.
C. Rajagopalachari: I would appeal to him that according to the ordinary interpretation if you introduce the word minority, the question whether a class is a minority will become justiciable. Classes will be interpreted in the sense of minority. The use of the general term 'classes' is followed by the phrase "not adequately represented" and the opinion of the State determines it. I think this is the best way of solving it.

K.M. Munshi: "In section 153A, the term 'classes of His Majesty's subjects' has been used. "Classes" have been interpreted as minorities or religious communities also. Nobody has ever interpreted it as not meaning miniorities." 8

Iqbal A. Ansari
iqbalansari2001@hotmail.com
(Continued - footnotes carried in the second part)

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