Analysis

The Lamented Justice Ranganath Misra

Frankly Speaking

Former Chief Justice of India and first Chairman of the National Human Rights Commission Ranganath Misra died at Bhubaneshwar in Orissa on 13 September 2012. Though I had known him earlier too, on 21 March 2005 both he and I had joined the National Commission for Religious and Linguistic Minorities [NCRLM] - he as the Chair and I as the Law Member. We worked together until 21 May 2007 when we submitted our report to Prime Minister Manmohan Singh. We used to regularly meet in the Commission’s office at Jawaharlal Nehru Stadium, at his official residence in New Delhi, and at my home in South Delhi. He had great affection for and absolute trust in me. Towards the end of our work he and the other two members of the Commission, Dr Mohinder Singh and the late Dr Anil Wilson, had entrusted to me the unenviable job of writing the Commission’s recommendations. I did my job, answering the call of my conscience, and after a series of deep deliberations all three of them unanimously endorsed my draft without any change.  

The idea that the Constitution of India prevents the State from introducing any special measures for the religious minorities has no legs to stand. It does prohibit discrimination between citizens on three grounds - caste, gender and religion - but none of these prohibitions is absolute. “Protective discrimination” in favour of backward castes and weaker sex is permissible by express dictates of the Constitution. On the same analogy affirmative action in favour of religious minorities aiming at effecting equality among unequals would only amount to what is known as constitutionally permissible protective discrimination. The mandate of “no religion-based discrimination” under the Constitution was meant to protect the minorities against hegemonic domination of the majority on national resources, but it is being gravely misunderstood and used in the opposite direction through double standards of constitutional validity. Though the caste system is a universal phenomenon in the Indian society, no one fumes on the Scheduled Caste net being restricted to three chosen religious communities - Hindus, Buddhists and Sikhs. No eyebrows were raised when in a case decided in 1990 the Supreme Court of India thought it fit to severely curtail minorities’ educational rights unconditionally guaranteed under the Constitution by directing minority educational institutions to keep half of their intake virtually reserved for the majority community. Any proposal for a reciprocal measure for minorities by way of earmarking some space for them in non-minority institutions is, on the other hand, invariably dubbed as un-Constitutional. All this is indeed unfortunate.

Fully conscious of these trends widely prevailing in the country, the NCRLM - which in the media abbreviation later became “Ranganath Misra Commission” - spoke in its report of three alternative courses of action. Its first preference was that religion or caste must not have any place whatsoever in determining educational and economic backwardness and a totally secular criterion should be uniformly adopted for this purpose for all communities and groups. This measure, if to be adopted, would require drastic changes in the present law relating to Scheduled Castes. Knowing well that this upsetting of the applecart would not be acceptable to politicians of the day, the Commission recommended a second alternative to ensure equality and justice - reserving 15% space for minorities in State-aided educational institutions, government employment and welfare schemes. This alternative too, the Commission very well knew, would not be easily digestible. It, therefore. suggested a third alternative measure - provision for an 8.4% quota for minorities within the already in-force 27% reservation for the OBCs.

Regarding the issue of the so-called Dalit Christians and Dalit Muslims, the Commission expressed a well-considered view that since caste-based stratification is shared by the entire society in India, excluding Christians and Muslims from the Scheduled Castes net by expressly restricting it to three chosen faiths amounts to religion-based discrimination totally repugnant to the Constitution’s ideal of State-neutrality to religion.  

The Commission did recommend a lot more beyond the issue of reservation which inexplicably nobody talks about - reserving all resources of the Central Wakf Council for the educational uplift of the Muslims, giving AMU and Jamia Millia special responsibilities to ensure their educational advancement throughout the country, providing enhanced aid and better facilities to all Muslim schools and colleges in India, promoting simultaneous modern education for madrasa students, and so on. The un-called for inhibition to any reservation for the minorities should have put no roadblock in implementing at least these recommendations of the Commission.  

The Misra Commission report was a product of deep thinking and strenuous work of a small group of extremely conscientious white-haired citizens whose patriotism and knowledge of Constitution and law was beyond reproach. Two of its members - Anil Wilson and now Ranganath Misra - have breathed their last waiting for action on its report. God alone knows if the other two surviving members [I and Mohinder Singh] will live long enough to see the fruit of the Commission’s gigantic work.

This article appeared in The Milli Gazette print issue of 1-15 November 2012 on page no. 11

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