By Aariz Mohammed,
The news paper headings on the AP High Court Judgment are misleading and written to meet their own objective. The court says “giving affirmative action without any data proof to any Community / Class is unconstitutional and in case of Religious Minorities it amounts to religion based reservation rather than the basis of ‘Backwardness’. The court further adds that the government fails to follow the procedural means adopted by itself through the statute of National Commission for Backward Classes (NCBC).
With regard to SC/ST category, Christians and Muslim of Scheduled caste origin are debarred from the SC status but not the ST Status by the 1950 Presidential order amended time and again to accommodate all other religious communities except Christians and Muslims. Of course Government through Census refusing to enroll these religious community people born in scheduled areas as STs is a different question and needs to be dealt separately. Court clearly refers to a commission and says that its report is not valid technically as it is not a statutory body, hence its recommendations cannot be considered by it. The committees and the commissions constituted on this issue are not equipped with the statutory mandate to do so by that their findings can be used as basis in the court of law.
The Gopal Singh and the Sachar committees are not statutory bodies but the studies evoked by the Prime Minister. The mandate of National Commission for Religious and Linguistic Minorities (NCRLM) popularly known as the Justice Raganath Misra Commission is not valid for this purpose as it is supposed to recommend criteria for identification of socially and economically backward sections among religious and linguistic minorities. Our constitution clearly and categorically proposes to provide affirmative action on the basis of ‘Socially and Educational Backward Classes’.
The court also questions carving out sub-quota of ‘Minority’ as a group as it is a heterogeneous category and affirmative action can only be considered for a backward identity of homogeneous nature as per Mandal I & II. Mandal and the subsequent judgments on the issue of providing affirmative action to Non-Hindu and non-caste practicing communities / classes are silent. For that matter none of the governments asked the respective Backward Classes Commissions to evolve criteria to identify “Backward Classes” among Religious Minorities in the post Independence area specifically.
The recommendation to provide affirmative action to non-Hindu counterpart of OBCs was set-a-side due to the political turmoil during the Mandal-Kamandal agitation. Some states provided BC status to these groups in their state list by considering the co-equal status of their socio-educational conditions beyond their religious affinity. The Model of Karnataka and Kerala are such models but Andhra Pradesh model is pending with the Apex court as it is squashed by the AP High Court on the grounds of lack of empirical data evidence.
The welfare schemes and the programmes won’t come under judicial review as they are not evolved though enactment or law. Because of this reason only the Delhi HC refused to issue orders on the implementation of SCP, TSP later renamed as SCSP and TSP. The discussions on ‘Economic backwardness’ in Constitution Assembly Debates leave the government to address the issue through planned process rather than statutory means.
The questions before the Activists, Policy Makers and the Social Engineers are different than commenting on the basis of public opinion, prevailing perceptions, agony and other vague things.
1. The question whether the government has given ample proof to give affirmative action to the existing OBCs, SCs and STs won’t arise here as it is not challenged in the court of law and it won’t fall under the preview of this case on hand. Court also expressed its displeasure over the non-revising the existing list of OBCs, SCs and STs in accordance with respective statutes. None of the deprived sections affected by this never knocked the doors of justice on this issue. The polity in power and reps of deprived sections has their own concerns in not raising this issue socially and politically.
2. Even after the studies of different committee findings how and why the government refuses to gather primary data of the communities enjoying affirmative action and the same on the communities demanding for affirmative action. To say differently why the government refuses to link the constitutional provisions of affirmative action with Census and give affirmative action on the scientific basis rather than existing estimates.
3. Why the Government commissioned a non-statutory of NCRLM with the former Chief Justice of India as its Chairmen with an invalid mandate under the provisions of affirmative action?
4. What made the government to evoke such an act even after having the same experience in Andhra Pradesh? What does the reiteration of the Minister that they give affirmative action after studding the case at AP means? Is there force acting beyond the will and wish of the Government forcing it to act in negation? The AP Government did the same thing during 2005 and got the same judgment. They only difference there is they have issued a GO giving affirmative action to Muslims here it is sub-grouping on the name of minorities.
5. The Central government and the State governments refuse to implement and abide the NCBC, State BC Commission mandate and facilitate their statutory function.
6. The Indian policy of affirmative action is really designed to provide helping hand to the deprived or to the others. Allocating 50% opportunities through affirmative action to 80% population and facilitating 20% population with 50% opportunities is not negating the concept?
7. Affirmative action when given on the name of class to a particular caste/castes, religious group as a whole is not considered unconstitutional but in the case of Muslims and Muslim groups its is considered as unconstitutional by policy makers and campaigns of public causes.
8. Why the courts won’t consider the case of existing affirmative action unscientific as it is not based on scientific proof but on estimates and continue to deprive needy classes / people from constitutional obligation as default.
9. The criteria of identifying Backward Classes on the basis of the acronym ‘Caste = Class’ is forcing the people to adopt and to subjugate caste practices contrary to the constitutional premise of evolving casteless society. The non-caste practicing people were made to adopt this at the cost of their free will. Why the Courts fail to look into these grave concerns and consider ‘caste’ as a major settled criteria for providing affirmative action?
Aariz Mohammed is with the Center for Social Justice, Hyderabad.