Common Sense on Reservation for Muslims

Editorial,  Muslim India by Syed Shahabuddin

A reply always depends on how the question is put. If the question is put whether the Constitution permits religion -based reservation, the answer is No, just as the Constitution does not permit caste-based reservation. But if the question is put whether a religious  community or cast group, which forms a Backward Class, is entitled to reservation, the answer is YES. This is the law of the land.

A great contribution of the Sachar Committee has been to document the educational, economic and therefore social backwardness  makes it a  Backwerd class and entitles it to reservation and of the Muslim Indians, as a social group, thoroughly and comprehensively. It follows that such all round backwardness demands not only urgent but drastic action in order to stop the downslide and to reverse the trend.

This is not an academic question but a national imperative. But being  a political issue, particularly because it has been mired in controversies and has historical and emotional overtones, any government proposal is bound to be opposed vehemently by political adversaries, tooth and nail, in Parliament and outside. Therefore, the Government of the day, which is bound by its Manifesto and its Common Minimum Programme as well as by its repeated public assertion at the highest level to raise the Muslim community from its present state in the larger interest of the nation, will need to show not only political will but the capacity to engage the people, the political parties and the mass media in a forthright open debate in order to create a national consensus on what needs to be done to achieve the objective One  doubts if reservation for the Muslim community will ever enjoy political support across the board. No Government, however sympathetic, can afford to be insensitive to a political storm which may effect its very survival. Yet, a democratic and secular Government can ignore the legitimate aspirations of a long-suffering deprived and marginalized religious minority whose extreme backwardness stands exposed for the first time except at the cost of national pogress and international prestige.  

The first question which is central to the issue is the Constitutional and legal dimension which forms the core of the problem. This is a major hurdle and only after this hurdle is crossed, then other questions may arise c.g. whether on balance in the current environment  reservation will benefit or harm the Muslim community.

In this process many side battles will have to be fought, even with friends and quasi-friends, and worse. Those opposed shall not only be raising many irrelevant issues to mislead the people but even to incite doubt, distrust and suspicion and engender division in the Muslim community itself on the rightness of the course.

Let us first tackle the constitutional question. The Indian society is not  homogenous, it consists of many identifiable and self-concious social groups and sub-groups, communities and sub-communities, which are identified by caste or sub-caste, religion or sect, race or tribe, language or dialect, place of birth or domicile. Articles 15(1) and 16(1) bar discrimination only on the basis of any of these markers of identity. But these Articles and even Article 16 (2) treat caste and religion on par. A caste group, which also qualifies as a Backward Class, comes within the purview of  Articles 15(4) and 16(4). It is sheer common sense to conclude that a religious group or sub-group which qualifies to be a Backward Class, judged by the same parameters, also qualifies for reservation under Articles 15(4) & 16(4). Indeed these two articles apply to all Indians. Therefore, the relative backwardness of all social groups or sub-groups, which demand or claim protection, has to be tested on the anvil of the same parameters by a competent authority. That is why the Indra Sawhney judgment affirms in more than one places that a religious group may also constitute a Backward Class. It recalls that Dr. Ambedkar had used the word ‘community’,  a much wider term than caste while speaking on the subject in the Constituent Assembly. Former Chief Justice Venkatachallia, when approached as the Chairman of the National Commission to Review the Functioning of the Constitution, with the request to set all doubts at rest by proposing an amendment to Article 15 (4), explained that reservation for Muslim was already implicit in the existing text and that reservation for Muslims was a matter of political will and government policy. We know that the Muslims community enjoys reservation in Kerala and Karnataka as a community and the prorisions have not been legally  challenged. Even in the state OBC lists many Muslim sub-communities have been included. It is another matter that pitted against much stronger social  groups, they do not receive their proportionate due. But that is another story.   

It is not enough to say that a group constitutes a Backward Class but its level of backwardness has to be measured and judged against the average-level of backwardness of the people of a state or the nation as a whole. If the level of backwardness of a group is below the average , it should be excluded but if the level of backwardness exceeds the average, it has to be included. Another test is to relate the backwardness of any group to that of the Scheduled Castes and Scheduled Tribes.

What is essential to underline is that every social group, whatever the caste or religion or its identity marker has within it a backward section. It goes without saying that even a high caste, the Brahmins, the Kshatriyas,  the Vaishyas and the Kayasthas have their poor, uneducated and unemployed. So have the Syeds, Shaikhs and Pathans.

To determine the level of backwardness therefore a scientific scale has to be constructed. A Backward Class may be 80%, or even more, backward as compared to the SC/ST. Some others may be only 10% or less. The reservation quotas for all backward classes then cannot always be equal to their proportion in population as in the case of SC/ST. Their quotas will be proportional to a multiple of population proportion and backwardness level. The Sachar Committee data indicate that the Muslim are almost as backward as the SC /ST.

The parameters may vary with the evolving pattern of development but there are some constants like level of literacy, percentage of matriculates, percentage of graduates, percentage gainfully employed, share in Government service representation in elected bodies, possession of home and economic assets like capital land, machinery etc, per capita income, life expectancy at birth and social stigma or disability. The list is not exhaustive but the parameters should be easily accessible and quantified. Unfortunately caste census having been abandoned since 1951, even accurate figures of population of various social groups are not available.    

Once the quota for a group is thus  determined the important point is that while the group quota is determined for the group as a whole, its beneficiaries of the quota, must come from  backward families within the group. Otherwise the entire purpose of reservation which is to uplift a Backward Class will be defeated. That is why the Supreme Court rightly  laid down that the Creamy Layer should be excluded.

 However, the Supreme Court  has also prescribed a maximum of  50%; it is neither absolute nor inflexible but it limits all Backward Classes together according the SC/ST to 27% against a higher population. It is obvious that since the demographic and development patterns vary from state to state and from those of the country as a whole, the total number of Backward Classes and consequently their cumulative quota will vary from state to state and for the country. Therefore, the 50% Rule appears to be unjust, inequitable and arbitrary. Between one census and the next some groups may rise some may fall and therefore, the total quota will change from decade of decade. Hopefully with progress and development the non-reserved pool will expand.

Another aspect which is increasingly occupying public space is that when Backward Classes are bunched together, the more forward or politically or economically stronger among them are likely to take a bigger bite then their due and deprive the others of their due share. This is why the Supreme Court laid down that the Backward Classes may be categorized as more or less backward. In Bihar they have been categorized as OBCs & MBCs. In Karnataka in five categories. Now demands for categorization are rising from within the SCs and the STs. This will gather momentum and logically their demands cannot be ignored. So, if the Muslim OBCs, already included as a whole or individually demand a separate quota on account of persistent under-representation, how can they be refused.? 

Will reservation only in Government service or in higher education be a panacea for a Backward Class? If reservation is to generate economic development and reduce inter-group disparities at any level, it must be comprehensive, cover all development and welfare schemes including universalisation of education and employment guarantee scheme, so that at the ground level these schemes benefit all segments of the society equally. The same applies to the flow of bank credit, to measures for promotion of welfare, to concessions for societal purposes like land for private schools and social institutions, to every branch of education, and to the judiciary and  the legislature which are the source springs of power.

 In consonance with the Preamble and Article 46, the State should provide for effective measures to uplift  any social group, which is at the lower rung or the bottom of the ladder, whatever its identity. A logical way would be that with rising expectations, any social group or sub-group, which is a Backward Class and forms even 1% of the population should have its own quota and not forced into a common group like SC / ST / OBC  because in free India no group is prepared accept the dominance of the othersor social deprivation.

Those who  oppose  reservation  for the Muslims put forward many absurd arguments some say  that a separate quota will divide the country and prepare the ground for yet another Pakistan. This too absurd for comment. Wider participation in governance or administration or access to higher education will only strengthen the bonds that tie the  Muslims to their motherland and enable them to contribute to its development. In any case reservation for SCs, STs and Hindus OBCs has not divided the nation but served to remove frustration, invigorate nationalism and accelerate  progress. Why should it be otherwise in the case of Muslims?

It is also questioned, perhaps ironically why the Muslims “who ruled over the country for 800 years”should beg for a quota or seek a crutch. First, Muslim masses never ruled the country; some kings bearing Muslims names did. Secondly, participation in governance is a democratic right. And sharing power is a universally recognized means for permitting cohesion in a segmented society. Thirdly, a quota is not a crutch. It is a political device to reduce social and economic disparities. Fourthly, we are dealing with  contemporary situation and not with past glories.

It is also said that Muslim Indian enjoy more rights than the Muslims of other countries. This is irrelevant. As Indians they are entitled to equal treatment  under our Constitution. Their rights do not depend or what happens in other states. 

Then it is said that in the age of globalization public employment is shrinking and private employment  will all be merit-based. Yet no one has heard of any social group which enjoys reservation offering to give it up. Neither does any one believe that private employment shall be absolutely free of bias and prejudice, nepotism or corruption. Yet with all round reservation the Muslim Community may also catch up and compete on equal  terms with the others.

It is also said that nearly 75% of the Muslim are already included in the list of OBCs and STs. Yet it is like pitting the feather-weights with the heavy-weights in a ring! This explains why the SC’s separated from other Hindus and why the OBCs separated from the high castes and why many Hindus OBCs and SC’s/ST’s now want to have their own quotas. Why should we refuse the Muslim OBC’s if they wish to have one or more quotas of  their own so that they compete against themselves, without any fear or apprehension of a bias or intolerance, in punishment for the supposed sins of their fathers and grand fathers.

  A more relevant question is the how will the relatively backward within the Muslim community fare. If the above logic applies, and a numerically viable but weaker Muslim sub-community should have its own quota. As a rule, however all over the world minorities gain their political objectives only if they are united. If they are divided they cannot overcome the majoritarian resistance. Justice demands that once there is a Muslims quota the first beneficiary of the Muslim quota as decided by the National Convention on Reservation in 1994 should preferentially be the candidates or applicants who belong to the Backward  Sub-communities which stand notified as OBCs and only the unutilized quota, if any, should be available for the non OBCs on merit.

Some sympathetic souls argue that the Muslims should first concentrate on education without realising that it takes more than 20 year to complete it.. But education does not guarantee meanest employment for Muslims while job reservation will provide impetus for achieving excellence in education.

Some blame the Madrasa system for educational backwardness while only 4% Muslims student are enrolled in Madrasas. Anyway Madrasas have their own  object and purpose. And the hold of the orthodoxy on the community is highly exaggerated.  There arguments are advanced merely to dissuade the Muslims from pushing for reservation in public and private employment,  even to enter  lower categories for which they are amply qualified even today.  

Finally, it needs to be re-emphasized that no Muslim organization or institution is demanding reservation on the basis of religion and yet this vicious propaganda is repeated all the times, in order to generate fear and hatred, bias and intolerance and to revive the memories of the Partition on the basis of religion and of Muslim invasions. In independent India the Muslims gave up reservation, which they enjoyed under the British, they surrendered reservation envisaged for them in the first draft of the Constitution, they never formed Muslim political parties but joined the secular mainstream and accepted non-Muslim leaders; they never asked for any special treatment or special laws or special consideration, except in matters relating to their religious identity.

  Today, by all rational criteria, Muslim Indian, a well-defined group, constitute a Backward Class and they demand to be recognized as such and treated as a Backward Class within the framework of the Constitution. They are not asking for the moon, anything more than their due.

However, let the government spell out its idias on  fair and  reasonable share and establish an effective machinery for implementation and monitoring ithem. Muslim Indians  have waited for 50 years. They can wait for another 2-3 years. But the youth is not prepared to suffer another generation of deprivation, indignity and injustice.

New Delhi

1 December, 2006                ( Syed Shahabuddin)