By Prof. Iqbal. A. Ansari
1.The drafting history of the present Article\6(4); Initially it was a provision meant exclusively for minorities, under represented in public employment. While replacing minority by ‘class’ it was explained by K. M. Munshi and Sardar Patel that ‘class’ was being used as an inclusive term to cover religious minorities as well as backward classes among the majority. (1)
2.In Indra Sawhney judgment the Supreme Court took note of the fact that Dr. Ambedkar used the word ‘community’ and not ‘caste’ in his speech in the Constituent Assembly during the debate on this issue. For illustration the learned court used the example of the princely State of Travancore, where Muslims as a whole were treated as a backward community. It has therefore ruled that in a particular State “Muslim community as whole may be found socially backward” (2).
3.The National Commission to Review the Working of the Constitution (N.C R.W.C) headed by Justice M.N. Venkatchallah, appointed by BJP led NDA Govt. Of India has made the clarificatory observation that under the existing provisions of the Constitution there is nothing to prevent the government from making reservation in favour of minorities, if it is considered desirable. (3)
4. The secularity of the State requires it to ensure that all citizens and sections of people. Irrespective of their religious affiliation are enabled to enjoy effective equality in reality, which necessitates differential/preferential treatment of disadvantaged/vulnerable minorities especially in situations where minority-majority relations are not cordial.
4.1 In view of the fact that permanent minorities with distinct identities, especially those which arouse suspicion and hostility of the majority, are generally subjected to neglect and discrimination, special provision for them are required under international human rights standards relating to protection of minorities under Article 27 of the International Covenant on Civil and Political Rights (ICCPR) read with the Human Rights Committee’s comments of 1994 (4) and under Articles 2(2);4(2) &(5); & 5(1) of the UN Declaration on Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (5). Article 8(3) of the Declaration has clarified that any special measures adopted for minorities will not be violative of the individual’s right to equality.
5. Whatever the basis of discrimination against a group of people like race, religion or sect should also constitute the basis of special affirmative action programme. It is this principle which made the Presidential order of 1950 restrict the application of Article 341 to members of Scheduled Castes belonging to the Hindu fold alone which got later extended to Sikhism and Buddhism. It did not amount to privileging religions, which will be anti-secular, but basing state policy on social realities, of which religious affiliation of communities can be a part.
5.1 Muslims in India, the bulk of whom are of indigenous origin converted from lower castes and S.Cs., have been subjected to neglect and exclusionary –discriminatory treatment largely because of the shadow of Partition and partly because of strong sub-group loyalties found in the Hindu society organized on the basis of a rigid caste system. Since the early period of contact with Muslims, they have been characterized by Hindus as Malichas. The Hindu tends to treat the entire Muslim community as a ‘caste’ apart.
5.2 Periodically Muslims have been made targets of hate and violence causing their insecurity and social dislocation. They have been treated as a stigmatized community (for perceived wrongs of history, including Partition) whose loyalties are suspect, which provide justification for their neglect and discrimination by those who wield power and control distribution of benefits of the State, especially in areas in which appointments are not made on objective merit-based criteria but are discretionary. All these disabilities of Muslims have been recorded in various reports, of which those of the High Power Panel on Minorities, S.C., S.T. And Weaker Sections headed by Dr. Gopal Singh (1983) and of the Prime Minister’s High Level Committee on the Social, Economic and Educational Status of Muslims headed by Justice Rajindar Sachar (2006) can be treated as authentic and comprehensive.
6. Both Dr. Gopal Singh Panel’s Report and Justice Rajendar Sachar Committee’s Report record the under-representation of Muslims in education and employment caused, at least partly, by neglect and discrimination.
6.1 Given the historical deprivation of bulk of Muslims belonging to OBC category, as recognized by Mandal Commission Report, and given the added post-Partition factor of neglect, discrimination and insecurity suffered by Muslim as a religion-based stigmatized community, the status of the community as a whole, according to Sachar Committee, is worse than that of OBC Hindus.
7. It would appear that cumulative effect of historical backwardness of large sections of Muslims and their post-1947 neglect, has led to the present situation of the community as a backward and suspect group, remedial affirmative action for which should have the following components.
i) Treating Muslims, minus their creamy layer-determined on the basis of income, education and occupation- as a backward class of people who should be provided reservation in education and employment under Articles 15(4) and 16(4) with the provision that within this quota, there will be sub-quotas for ‘More Backward’ and ‘Most Backward’ Muslims.
ii) Limiting the benefit of separate reservation only for OBC Muslims.
It is the second option which in its extreme caution the A.P. government has adopted, on the basis the Reports of Justice Sachar Committee and that of Shri P.S. Krishanan Committee.
In the light of the above submission, the plea that any religion-based quota is not valid under India secular constitution should be dismissed. The quota is not aimed at privileging Islam, which would be definitely anti-secular. It is rather aimed at providing protective-compensatory discrimination to undo the effect of negative discrimination suffered by a historical community based on religion.
The benefit will be enjoyed by members of cumulatively deprived sections of Muslims in A.P. Any one who converts to Islam will not be treated as beneficiary of this Muslim quota. Such a convertee will have his rights and privileges unaffected by conversion. Such as provision under law shall take care of the concern of secularism of the State and citizenship.
Notes :
1. B. Shiva Rao, The Framing of India’s Constitution : Select Documents, Vol. II, pp.200-208, 258-262.
2. S.C. Judgement on Writ Petition (Civil) No. 930 of 1990, delivered on 16 Nov. 1992, paras 17,27,78,80,81,83 & 85.
3. Ch.3-para 3.7.1 & 3.7.2.
4. Comment No. 23 on art 27 of 8-04-1994.
5. General Assembly Resolution 47/135 of 18 Dec.1992.
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Prof. Iqbal. A. Ansari
Syeda Manzil, Muzammil Compound 4/1703, Dodpur, Aligarh 202001