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Constitution, Equality & Muslim

Reservation 

Constitution, Equalit y &Muslim Reservation

Prof. Faizan Mustaf a

 V ice -Cha nce ll or N A LSA R Uni v er sit y of La w, Hy der a ba d

Last Updated : 05 Apr 2014 04:55:38 PM IST

1Like

After independence, living under  the

shadow of Pakistan, the Muslim

community was for long in a state  of 

depre ssion because it was targetedby the communal forces often in

collusion with the local

administration.

The promulgation of the Constitution

based on Democracy, Rule of Law, Social

Justice and Secularism, in 1949, though

the original Article 296 in the Draft Constitution providing for reservation for in

legislature and due representation in the executive had been dropped, had

revived their spirits to some extent. Unfortunately, during the years of transition

between 1947-77, the community remained diffident about its future, faced as it

was with recurring communal violence, blatant hostile discrimination and

systematic vilification. By early eighties the community realized that its future

unquestionably lay in its motherland and that, along with the emergent social

forces that had been unleashed by democracy and development, it had both to

develop a stake in development and, at the same time, assert its equitable share

through participation in public life. Thus they started demanding their share in

the national developmental cake through affirmative action. Muslim reservation

was suggested by the Rangnath Commission also and UPA government did

provide 4.5 % reservation to minorities( not Muslims alone) before the U.P.

elections but the same was stayed as after losing elections UPA did not defend it

well in the Andhra High Court. The matter is in the apex court.Three issues are to

be understood here: is it religion based reservation and thus unconstitutional,

reservation for Muslims is unjustified as Islam does not recognize caste system

and by this kind of reservation, share of Hindu Backward castes is going to be

snatched away.

 This is not religion based reservation. It is not reservation for minorities or for 

Muslims. It is reservation for certain BCs identified on the basis of social and

educational backwardness. This is not a new reservation. The Backward Class

Minorities have already been identified in the Central List State-wise in 1993

based on commonality between each State List and the Mandal List for each

State and others on the statutory advices of the National Commission for 

Backward Classes (NCBC) set up on the direction of Supreme Court in the

Mandal judgement. All of them were identified solely on the basis of social and

educational backwardness as prescribed by the Constitution. Religion of castes /

communities was not a factor at all — neither a qualification nor a

disqualification. Any scheme of reservation can be criticized as one based on

religion only if all members / castes or communities of any religion are included in

toto and given reservation. In the State-wise Central List of Backward Classes,

 just as certain castes of Hindus which are not socially backward are not included,

Muslim castes / communities like Syed, Pathan, Mogul, Arab, Irani, Cutchi-

Memon, Bohra, Khoja, etc., and Christian castes or communities like Syrian

Christians and Sikh castes like Jat Sikhs, Khatri Sikhs etc. are not included

because they are not socially backward. Obviously, castes/communities which

are included in the BC list and provided reservation are not based on religion

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and what has been done is not at all unconstitutional. Moreover the crucial word

in Art 15 Art 16 is “only”. This implies that if a religious, racial or caste group

forms a weaker section under Article 46 or constitutes a Backward Class under 

 Article 15(4) & 16 (4) of the Constitution, it is entitled to special provisions for its

advancement. The fact is that 66 years after independence the Muslims, and

other minorities, particularly in States and UTs where they form a minority,

constitute a Backward Class within the meaning of Articles 15(4) & 16(4) of the

Constitution. The Muslims have, therefore, been demanding reservation not

because they are Muslims but because they constitute as a Backward Class.

In the course of the debate in the Constituent Assembly, Dr. Ambedkar  & othersrepeatedly used the word ‘community’. Subsequently the Mandal Commission,

1980, following example set by several states, included sections of the Muslim

and other religious minorities in the list of OBCs. The Gopal Singh Panel, 1983,

proposed that Muslims should enjoy reservation at least in Groups C & D Posts,

because of their educational backwardness. The Supreme Court judgment in the

Inder Sawhey case laid down that any social group, whatever its mark of identity,

if it is found to be backward under the same criteria as the others, will be entitled

to be treated as a Backward Class. This was also the view take by former Chief 

Justice Venkatachalliah when he presided over the National Commission on the

Constitution. The Sachar Report has scientifically & thoroughly established

through Government statistics & reports that the Muslims constitute a Backward

Class. This conclusion is also supported by the investigation conducted by the

Mishra Commission. More importantly, several states in India, particularly

Karnataka, Kerala, Tamil Nadu and Manipur, have included Muslims qua Muslims

in the Lists of Backward Classes & allocated them separate quotas. These

inclusions have not been judicial challenged. Obviously, the Constitution cannot

be interpreted differently in different parts of the country. The conclusion,

therefore, is that the Muslim community which constitutes a Backward Class is

entitled to reservation in government jobs and education as well as, benefits of 

development and that reservation will act as catalyst for its uplift .

 

The inclusion of non-Hindu castes / communities in the list of BCs is not a new-

fangled innovation of vote-hungry politicians. Even before Independence, in the

southern States, Muslims or certain castes/communities of Muslims have always

been included in the BC lists along with Hindu and Christian backward castes.

This was also done by post-Independence State Backward Class Commissions

and the National-level Kalelkar (1953-55) and Mandal (1979-80) Commissions —

the national Commissions also identified the BCs of Sikhs and Buddhists (before

SC converts to Buddhism were recognised as SCs). They were only recognizing

social reality without being influenced either way by the religion of members of 

castes / communities found to be socially and educationally backward.

 

It is true that the social ideology of Islam is uncompromisingly egalitarian and

upholds equality and fraternity. But, the social system among adherents of Islam

is based on various social and economic factors. On account of socio-economic

factors, Muslim society in India (and also in some other parts of the world)

presents a picture of social inequality. The Indian Caste System is so all-

pervasive that J.H. Hutton, the scholarly Census Commissioner of 1931 rightly

observed: “Caste was in the air, and neither the followers of Islam nor of 

Christianity could escape the infection of caste; even the change o f religion doesnot destroy the caste system, for Muslims who do not recognize it as valid are

found to observe it in practice and there are many Muslim castes as well as

Hindus” (Hutton, 1980 (1946)). This is not different from the situation among

adherents of other religions also. The Vedas and Upanishads proclaim the

universality of the same soul permeating all beings, human and even non-

human. But notwithstanding their lofty spiritual position, a virulent caste system

has emerged in the Hindu society. The socially perspective landmark Mandal

 judgment of Supreme Court also notices the prevalence of the caste system

among adherents of non-Hindu religions. There fore, it is illogical and factually

incorrect to say that because Islam does not recognise caste, there are no

castes or caste-like social collectivities within Muslim society.

 

 According to Mandal Commission, BC Hindus formed 43.7%. At that time, Hindu

population was 83.84% of Indian population. 43.70% in 83.84% is same as 52

out of 100. Therefore, the Commission applied a rule of the thumb and assumed

that the percentage of BCs among non-Hindus would also be 52% of the

population of Minorities. At that time, the population of Minorities was 16.16%.

 52% of 16.16% is 8.4%. The total popu lation of BCs of all religions was

estimated by aggregating 43.7% plus 8.4% which is equal to 52%.The rule of the

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Written by Ramachanmdra Das about 1 month, 21 days, 18 hours, 2

minutes, 21 seconds ago

If VHP was banned from competing in election as a religious party, how is

that Muslim League is allowed to contest. Religion should be only a

personnel affair and State should not recognise any religion. Muslim=s who

ruled North India for about 300 years, before the British, and who enforced

Jessia, a tax Hindus had to pay at the time of Aurangazeeb, can be a

considered as a minority community. There are plenty of rich Muslims in

many parts of India who still avail themselves of the benefits intended for 

BCs. This is not justice

 

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