Equality and a Level Playing Field

08, Jun 2017

Equality and a Level Playing Field

Face the facts

Heated reactions and debates on reservations for Muslims, conjuring up images of communal polarisation and Partition, deliberately ignore the fact that secular India has not given Muslims a fair deal

BY Teesta Setalvad

Reservations, and that too for Muslims?

This could well be the stated or unstated reaction of many Indians (not just sanghis) to recent moves by the newly elected Congress government in Andhra Pradesh to provide reservations for the Muslims in the state to the extent of 5 per cent and their inclusion in an additional and separate category of backward classes in the state. (The AP government has now withdrawn its first G.O. and assured the AP high court that it will modify its order so that reservations for large sections of the Muslims are brought under the overall ‘social and economic backward classes category’ and limited to the overall ceiling of 50 per cent).

The cat, however, is out among the pigeons. The issues raised by the AP government’s G.O., be it on the specific issue of reservations for Muslims as Muslims, or reservations per se, cannot be left to the safety of seminar rooms and private discussions any longer.

Consider this. Having given ourselves a Constitution in 1950, we began our serious engagement as a society, a people and a civilisation with inviolable notions of human dignity enshrined in the right to life, freedom, equality, non-discrimination, freedom of faith and so on. Even as we entered into this solemn contract we recognised our flaws and failings and that is why at the outset we enacted sub-sections as amendments to the initial Articles: Articles 15 (4) and 16(4-A) in 1951 and 1995 respectively.

These Articles in the section on fundamental rights, including Article 16 (4), which has been there since the inception of the Constitution, qualify the articles on ‘prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’ (Article 15) and ‘equality of opportunity in matters of employment’ (Article 16) by empowering governments to make special legislative provisions for scheduled castes and tribes and socially and educationally backward classes (SEBC) of citizens.

The drafting history of Article 16 (4) reveals that all members of the Constituent Assembly, which included Vallabhbhai Patel (the chairperson of the committee), KM Munshi and Shyama Prasad Mukherjee among others were unanimous in their opinion that ‘socially and economically backward classes of citizens’ included minorities as a category. A serious apprehension then expressed by Frank Anthony at the ‘non-inclusion specifically of the term minorities’ should seriously prick all Indian consciences if one pauses to consider the plight of minorities today.

Why has the crucial drafting history of this Article not influenced, in any way, judicial pronouncements, political discourse or executive action in post-Independence India? Has there been in any sense a silent denial of not simply the political de-privileging of India’s largest minority, Muslims, but a denial compounded by an absence of serious concern over the Indian Muslims’ socio-economic index?

The debates in the Constituent Assembly that began in 1946 and concluded with the final draft of the Indian Constitution in October 1949 were conducted in parallel with a violent upheaval on the ground. That upheaval was bitter and bloody with unprecedented communal bloodshed resulting in Partition.

This is what, we are told, influenced the tenor and spirit of the Constituent Assembly debates and led to the inclusion, non-inclusion, specification and non-specification of crucial issues relating to the political safeguards for the minorities (See box, Pages from our past.) Ironically, the religious safeguards, including the non-interference of a ‘secular’ State in the personal laws of religious communities, a non-interference that has directly impinged on the rights of all women, was vigorously debated and demanded by Muslim leaders.

These political safeguards that earlier were sought to be included and figured in the first draft of our Constitution, published in February 1948, have a specific relevance when we consider the abysmal social and economic indices of the Muslim community in India today. Among the political safeguards included and then dropped was that of representation (not reservations) of all minorities in central administrative and provincial services, with the further stipulation of a Special Security Officer at both the central and provincial levels to monitor and report on the status of minority presence in the services.

The National Sample Survey conducted in 1998 reveals shockingly that though Muslims are more than 12 per cent of the total population, the representation of Muslims in the IAS is only 2.86 per cent and in the IPS, 2 per cent. A shocking 52 per cent Muslims live below the poverty line as compared to 30 per cent of other Indian communities. Worse still, their representation in government jobs, armed and police forces, and Indian administrative and foreign services (IAS and IFS), has at no time exceeded 4.5 per cent during the last 50 years.

Contrast this to the zippy run-up and in swing of Irfan Pathan, from a bruised and battered Vadodara in Gujarat, who is among the icons of Indian cricket nationalism today. Or the Aamir, Shah Rukh and Salman Khans, who are the heartthrobs of millions! Clearly, in fields and arenas of free and fair play, Muslims can and do excel on their own and need no prop.

It is where the Indian State has a role and responsibility, whether in building enough of the right kinds of schools in areas where Muslims reside (a similar disinterest is noticed when it comes to Dalit or Tribal education) rather than police stations, or in employing Muslims in public services that the Indian State has well and truly failed.

The issue of the absence of Muslim presence in state and central administrative and police services, the army even, as also the issue of the social and economic backwardness of the community as a whole is not an issue of only Muslim concern. Fifty-seven years down, if we consider ourselves an enlightened democracy, a stable democracy, the socio-economic index of the largest Indian minority ought to be a concern for all of Indian society because this ultimately is the litmus test of both enlightenment and stability.

At another level, however, there remains the critical issue of the ‘creamy layer’ among Muslims, that is strongly voiced in the opinions of people like Shabbir Ansari of the All India Muslim OBC Federation and Eijaz Ali of the All India Backward Mocha – United. (See accompanying articles). Both for the reasons so eloquently put forward by them, as much as for the fear that such reservations may actually heighten communal polarisation, it would be well to frame the argument for reservations in terms of social and economic backwardness and not in religious terms.

But to speak of the Muslim socio-economic index and argue for reservations for the socially and economically backward among them while we remain silent on the issue of adequate representation for Muslims as Muslims in critical public areas as mentioned above, would, I think, be, as it was 57 years ago, missing the wood for the trees.

Let’s face the facts. Serious cracks have threatened the very fabric of Indian democracy and these have developed around the critical issue of the inability of the State to adequately protect the life, property and dignity of its religious minorities, both Muslim and Christian.

For the Muslim or the Christian, be she or he from Malabar Hill in Mumbai, Naroda Patiya in Gujarat, or Jhabua in Madhya Pradesh, life or survival with dignity are constantly under threat. Faced with these nascent trends in the early eighties itself, the National Police Commission (1981) had voiced its view against reservations in the police force but clearly stated: “The composition of the force should reflect the general mix of communities as it exists in the society and thereby command the confidence of different sections of the society.”

What has any government done to implement this recommendation? Instead, we have a state like Gujarat that has systematically disenfranchised Muslims out of the police and state administrative cadres over the past decade (See Genocide Gujarat 2002, Communalism Combat March-April 2002).

The issue of a rich and varied, multicoloured Indian police, Indian administrative service, Indian army, as also the average school classroom is, or should be, as much of a concern for Hindu India, because it is an issue related to the revival and revitalisation of Indian democratic institutions and Indian democracy – not merely because it also means giving a fundamentally better deal to Indian Muslims.

And while on the subject of religion-based reservations, a well-concealed fact that needs to be admitted into the debate and rhetoric is the constitutional and unfair privileging of Hindu, Sikh and neo-Buddhist scheduled castes even as the Dalits among Muslims and Christians are denied their fair share on grounds of their faith.

(There are other Indian laws, too, that unfortunately privilege the Hindu majority including sections of the Hindu Undivided Family norm that benefits Hindus under the Income Tax Act as also the late seventies’ amendment to the Special Marriages Act that privileges the Hindu partner in a ‘secular’ marriage but I will not go into these details here.)

The whole issue of reservations per se has caused much resentment among the middle class youth who perceive this practice as a denial of their fundamental right to education, employment and promotion based on merit. In a country like India, with wide disparities in class, caste, region, etc., where there are just too many candidates for the proverbial share of a limited and shrinking cake, what should the outer limit on reservation be? Put differently, how many seats should there be for the ‘open’ category?

Resentments over job-driven reservations also simmer as latest National Sample Survey data shows a much higher unemployment among ‘educated youth’ (8.8 per cent) than among the illiterate (0.2 per cent) and semi-literate category (1.2 per cent).

The SC had ruled, after the Mandal Commission report was accepted and the agitation that had followed, that the outside limit on reservations ought to be 50 per cent. But in many educational institutions, all told, the reserved seats add up to a staggering 80 per cent. The irrational, non-standardised and non-examined application of government policy/ruling on this crucial issue builds up resentment as much as the declaration of public policy without sufficient public debate and the seeking of consensus.

Within the debate, we also need to address the fact of influential castes seeking political favours. The last NDA government wooed the Jats of Rajasthan by including 130 more categories as backward classes under the Mandal category, as a cover for giving Jats the benefit. And former Congress chief minister, Ashok Gehlot of Rajasthan contemplated giving the economically backward among the savarnas reservation to elicit their influential support. In both moves, the raison d’être behind the concept of reservations as contained in Articles 15 (4) and 16 (4) and (4-A) became seriously flawed and vitiated.

It was the issue of centuries’ old discrimination, denial and oppression by a caste Hindu society that lay behind the reservations granted as a constitutional right, not privilege, to both SCs and STs. The issue of generational under-privileging sanctified by the caste structure affected the construction labourer, the agricultural labourer, the manual scavenger, the sweeper, the rickshaw-puller, the cycle and car mechanic, the brick kiln worker, the butcher, the weaver, etc. etc. They were denied all manner of basic human rights: the right to existence, livelihood, education, freedom and health.

A socio-economic examination of these sections of the underprivileged reveals for those of us who wish to see it that these sections among our underprivileged are also, for the most, Dalits, Tribals, other backward castes, and also Christians, Muslims, Hindus, Sikhs and neo-Buddhists. A fair examination reveals that 57 years have not been enough to level the playing field.

Debates on the pros and cons of reservations would do well to consider that.

 

Pages from our past

Since the late 19th century special provisions were instituted by the colonial British State for a vast array of groups declared as ‘ backward’. Group representation provisions in the central legislature were first introduced by the colonial State through the Morley-Minto reforms of 1909, providing for separate electorates to Muslims. The Government of India Act of 1919 extended the system of separate electorates to Sikhs, Indian Christians and Europeans. In the GOI Act of 1935, 13 communal and functional groups were provided special representation.

Reservations in government appointments for Muslims were first recognised and granted by the colonial State in 1925 and extended to other communities in 1934. Before this, some of the earliest instances of policies of ‘group preference’ in government employment were found in the caste-based reservations and schemes instituted by the princely states such as Mysore in 1895 and Kolhapur in 1902.

How did the debate on minority rights and representation evolve through the Constituent Assembly debates and appear in the first draft of the Constitution published in February 1948 and how did they finally appear in the final draft of the Constitution?

Two aspects stand out here. One, the political safeguards for minorities including reserved seats in legislatures, quotas in government employment, representation of minorities in the Cabinet and the creation of an administrative machinery to ensure supervision and provision of minority rights existed specifically in the first draft of the Indian Constitution published in 1948 (Part XIV of the Draft Constitution).

Two, it was after detailed debates on secularism, equity, justice and national integration, in a remarkable reversal, by the time the Constitution reached the stage of its final draft in October 1949, minorities as a specific category were excluded from the purview of all political safeguards. The same, however, came to be accorded to SC/STs.

Even now, as extracts from the Constituent Assembly debates show (see accompanying box), the word ‘socially and economically backward classes’ as enunciated in Article 16 (4) was specifically argued by all to include minorities within its purview. This has been accepted by the National Commission for Review of the Working of the Constitution. (See article, Iqbal Ansari).

The difference between the first and final draft of the Constitution specifically concerning the exclusion of political safeguards and rights of minorities has been explained in terms of diluting the politics of religious identity in the aftermath of Partition. Muslim acquiescence on the issue was obtained through a closed (door) vote in the Advisory Committee meeting where Muslim leaders, including the Congress leader Maulana Abul Kalam Azad, abstained from voting.

Did these developments occur due to a weakened Muslim leadership, the privileging of the political discourse to leaders like Jinnah over Badshah Khan (Khan Abdul Gaffar Khan) by the British and then the Congress? Whatever the historical reasons, they were certainly explained and argued in the context of a secular Nation State and integration.

Surprisingly however, in the very same Constituent Assembly debates, Muslim members invoked strong notions of internal religious freedom of their community when it came to matters of Muslim Personal Law. They argued that religious personal laws, which govern such areas as marriage, divorce and maintenance, were an essential aspect of religion and, as such, ought to be granted immunity from State interference. Secularism was construed to imply that religion (in the context of family laws) in a secular State should be out of the purview of State interference.

What were the political safeguards for the minority offered in the earlier decisions of the Constituent Assembly that figured in the first draft of the Constitution?

The question of political safeguards to the minorities was referred to the advanced committee on Fundamental Rights, Minorities; Tribals had already been mandated by the Cabinet Mission Plan (May 16, 1946). While the concept of separate electorates as conceived by the British was rejected, the Committee did offer an alternate set of safeguards. These were: a) joint electorate with representation from communities in proportion to the population for a period limited to 10 years; b) ‘desirability’ of individual members of important minority communities in the Cabinet; c) a general declaration that in the All India and Provincial Services claims of all minorities in adequate representation shall be kept in view in consistence with efficient functioning of the administration; d) Provision for a special minority officer at the central and provincial levels to report to legislatures regarding the working of the various political safeguards for minorities.

The entire report was accepted by the Constituent Assembly in August 1947 and also incorporated in the first draft of the Indian Constitution in February 1948. However, in a substantive reversal, amendments were adopted to each of these Articles and they were dropped in the final draft in 1949.

In effect, this removed religious minorities from the purview of these safeguards. Not only that, through another significant reversal in 1950, a constitutional amendment restricted the benefits through reservation to the Scheduled Castes and Tribes among Hindus. Dalit Sikhs were later included through a further amendment. It was during Prime Minister VP Singh’s regime that (neo) Buddhist SCs were included as beneficiaries.

As of now, the constitutional reality of secular India privileges reservations for only Hindu, Sikh and neo-Buddhist Dalits even after it is more than widely accepted that caste and socio-economic backwardness spare no faith here, and in fact have de-privileged religious minorities, especially Muslims, in the past 56 years.

– TS.

Pre-natal history of Article 16

What is the pre-natal history of Article 16(4) of the Indian Constitution?

Clause (5) of the Fundamental Rights Sub-Committee Report providing for ‘’equality of opportunity in matters of public employment’’ came up for consideration before the Advisory Committee under the chairmanship of no less a person than Sardar Vallabhbhai Patel between 17 and 19 April, 1947. There was a rigorous discussion on whether the classification of social and economically backward classes per se included minorities. There was unanimity among all that it did as far as Article 16(4) is concerned and disagreement only whether specification of ‘minorities’ was required.

When it came up for discussion, Clause (5) as recommended by the Fundamental Rights Sub-Committee was the most important clause, and it was given due consideration by the Committee. That Committee consisted of stalwarts like C. Rajagopalachari, KM Panikkar, Shyama Prasad Mookerji, Frank Anthony KM Munshi and many such legal luminaries.

Shri C. Rajagopalachari suggested making the provision explicitly for the minorities instead of ‘classes’ as it is provided now. Shri Rajagopalachari told the Committee on a specific clarification about it as to whether it was the classes or minorities who were being given protection. Shri KM Panikkar, who was responsible for the initial changed words explained that besides recognising religious minorities there might be many classes amongst the Hindus not adequately represented. According to him, they had also to be given reservation.

In this connection Shri Shyama Prasad Mukherjee suggested the phrasing ‘minorities and other classes’ instead of simple ‘classes’. That was the suggestion made by Shri Shyama Prasad Mukherjee. Again, Sardar Ujjal Singh, who was a member of that Committee suggested ‘minorities and backward classes’ without any reference to adequate representation. Shri Frank Anthony said that it should be ‘classes and minorities’. This was the discussion that took place in that meeting. Sardar Vallabhbhai Patel observed that ‘classes’ included ‘minorities’. So, according to the drafters of the Indian Constitution, looking at the discussions by this Committee, under Article 16(4) of the Constitution wherever ‘classes’ has been mentioned, it includes ‘minorities’.

“The Advisory Committee was chaired by Sardar Vallabhbhai Patel when the matter was taken up for discussion. The Advisory Committee met for the second day in the council’s chamber of the Council House in New Delhi at 10 a.m. on April 22, 1947. Sardar Vallabhbhai Patel was in the chair. When the discussion was initiated, there were a number of observations made by the hon. members of the Committee like Sardar Vallabhbhai Patel, Shri Rajagopalachari and others.

“Frank Anthony: I would like to suggest that the clause should be amended ‘nothing herein contained shall prevent the State from making provision for reservation in favour of minorities or classes.

Ujjal Singh: It should be ‘classes’ over ‘minorities’.

Frank Anthony: What is the objection to ‘classes and minorities’? ‘Classes’ will refer to the Scheduled Castes.

1. Rajagopalachari: It is sufficiently described here – ‘those who are inadequately represented’.

Frank Anthony: Why should we fight shy of using a word which has the sanction of law and usage? We can make it more specific.

1. Rajagopalachari: Just as we do not say, ‘citizens and persons’, if one word is wider, we omit the smaller word.

Frank Anthony: We can put it as ‘classes including minorities.

Chairman (Sardar Vallabhbhai Patel): ‘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. ‘Class’ includes ‘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?”

This is what Sardar Vallabhbhai Patel asked the Committee when Article 16(4) was under discussion of the Advisory Committee. Sardar Vallabhbhai Patel had taken the stand that the classes would include minorities. He said that there was no need to suspect and that the whole basis of the provision is minorities. Again I would like to quote:

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

Chairman: No leader would be so stupid as to interpret that classes do not include 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 so 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.

1. 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 finally determines it. I think, this is the best way of solving it.

KM Munshi: In Section 153 A, the term ‘class 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 minorities.”

(From the Constituent Assembly Debates The Framing of India’s Constitution by Dr. B. Shiva Rao).