Indian Muslims: the myth of minorityism and reservation

By Dr. Mustafa Kamal Sherwani

With the tabling of Sachar Committee Report in the Parliament, the torrents of crocodile tears from the so-called sympathizers of the community, and the streams of condemnation from the opposite camps have started flooding the country. The political histrionics with a keen eye on the coming UP Assembly elections are reaching their crescendo. To those outside the country, and not much familiar with the ground realities, the revelations about the plight and predicament of Muslims may have come as a rude shock and like a bolt from the blue. They would be expecting some radical ameliorative measures from the union government as also from those of the states. However , for those members of the community who are staying in the country and have virtually resigned themselves to the existing slavish survival, the entire gamut of this report is nothing more than reduction to writing what they are confronting in their day to day life and against which their political outfits have been raising their feverish voices frequently enough. While there is no ground to impugn the good intentions, forthrightness and rectitude of Justice Sachar, but the uproar over his findings presently echoing all around is bound to die down with the ensuing UP Assembly elections, after the so-called secular and communal parties of the country have reaped their respective harvests through pro and anti-Muslim rhetoric.

With the pathetic situation remaining as it is, the basic purpose of this write-up is to explain in the real Constitutional perspective the concepts of the majorityism and minorityism, and reservation. It is imperative because it has been generally observed both in the journalistic analyses and public debates that the whole issue is projected in a most clouded and confused manner. As in the wake of Sacher Committee report the discussions on these matters have gained momentum, so is the added need to make their various dimensions crystal clear. To obviate the ambiguities, I would like to analyze the issue under the following four heads.

1.The myth of Constitutional majorityism and minorityism
2.Reservation for the whole Muslim community.
3.Reservation for backward Muslims
4.Continuaion of reservation facilities for Scheduled Castes after their conversion to Islam or Christianity, generally called ‘Dalit Muslim Reservation’.

1. The myth of Constitutional majorityism and minorityism

It is a paradox that our Constitution proceeds on the assumption that Hindus are in majority in the country, but nowhere defines the term ‘Hindu’, whereas other religious groups are constituting different minorities. The word ‘Hindu’ is used under article 25, the relevant parts of which are produced below.

Article 25 : Freedom of conscience and free profession, practice and propagation of religion-

(I ) Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion .
(II ) Nothing in this article shall affect the operation of any existing law or prevent the state from making any law ...

( b) promoting for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation II : In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Clause (II ) sub-clause (b), and explanation II of this article declare the inclusion of Sikh, Jaina or Buddhist religion within the fold of Hinduism. Surprisingly, the term used for these three, i.e. ‘Sikhism’, ‘Jainism’ and ‘Buddhism’ is not the caste but ‘religion’.

The word ‘minorities’ is used under articles 29 and 30 as mentioned below.

Article 29 : Protection of interests of minorities.
(I ) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

Article 30 : Right of Minorities to establish and administer educational institutions-
( I ) All minorities , whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

It appears to be ridiculous that these three religions, namely ‘ Sikhism’ ‘ Jainism’ and ‘Buddhism’ stand both in the category of ‘Hindus’ under article 25 and in that of minorities under articles 29 and 30. The Minority Commission includes them within their ambit. From the viewpoint of all round discrimination and persecution, the Muslims stand on totally different footing, and it is the reason that credit must go to the Prime Minister Dr. Man Mohan Singh that he entrusted Sacher Committee with the responsibility to probe the problems of Muslims only. It has at least pulled the Muslim community from the psychological defeatism that the word ‘Muslim’ is synonymous with communalism. This is the reason which explains for the community showing great restraint in not raising even their most genuine grievances under the ‘nomenclature’ or ‘banner’ of word ‘ Muslim’, but instead use the ‘Constitutionally secular’ term ‘minorities’ with the inevitable collection on the platform, the representatives of ‘Sikhs’ ‘Jains’ and ‘Buddhists’.

2. Reservation for the whole Muslim community.

According to the Constitutional provisions as they stand today, no reservation can be given to Muslims on the religious basis unless through the Amendment the whole community is declared as backward within the meaning of Article 16 (4 ) and Article 340.

The political parties have kept deceiving Muslims on this point. A few years back Andhra Pradesh Government played this political gimmick by making reservations for Muslims, knowing it fully well that it would be declared un-Constitutional by the High Court and Supreme Court. The same thing did happen. On 5th December, 2006, Samajwadi Party -sponsored resolution demanding Constitutional amendment to provide reservation to Dalit Muslims and Christians in government jobs was passed in UP Vidhan Sabha. If the Union government is serious about the implementation of Sacher Committee finding, it has the occasion to declare the whole Muslim Community socially, economically and educationally backward and include it within the range of reservations.

3. Reservation for backward Muslims : Reservation for backward castes and classes is permitted under Article 16 clause ( 4) after ascertaining their conditions through the Commission constituted under Article 340.

Article 16 : Equality of opportunity in matters of public employment –

(I) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.
(4) Nothing in this article shall prevent the state from making any provision for the reservation of appointments or posts in favour of any backward class of citizens , which in the opinion of the state is not adequately represented in the services under the state.

Article 340 : Appointment of a Commission to investigate the conditions of backward classes
It was under the provisions of article 340 that the Mandal Commission was constituted which identified both Hindu and Muslim backward castes which accounted for 54 % of the country’s population. The Muslim backward castes included in it formed about 85 % of the whole Muslim community and within the range of all backward castes their percentage came to 19.When for the entire backward lot 27% reservations were granted , the proportionate quota for Muslim backwards came to around 8.5 % . It is a glaring reality that since the inception, almost the whole range of 27% reservations is swallowed by three Hindu backward castes, namely ‘Aheer’(Yadav) ‘Lodh’ and ‘Kurmis’ because they are the mightiest castes in Indian society. For Muslim backwards, the benefits of Mandal Commission have so far remained a mirage and a legal fiction. According to the Supreme Court verdict any sub-quota may be earmarked within the ambit of 27% reservations simply by government G.O. and no legislation is required. The Muslim political outfits have been consistently raising the demand for the fixation of this 8.5% quota for Muslim backward castes , but no government, whether at the center or in the state wants to ensure this existing facility to the Muslim backwards . Instead they continue to befool the community in the name of Muslim reservation etc.

4.Continuaion of reservation facilities for Scheduled Castes after their conversion to Islam or Christianity, generally called ‘Dalit Muslim Reservation’.

Another most genuine demand which the Muslim community has been making is related to the continuation of reservation facility to Scheduled Castes even after they embrace Islam or Christianity. The present legal position is that once they convert to Islam or Christianity, they are deprived of all the facilities that they enjoy as the members of Scheduled Caste. Muslims seek the amendment in the following related articles so as to ensure this facility.

Article 330 : Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People.

Article 332 : Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States.

Article 335 : Claims of Scheduled Castes and Scheduled Tribes to services and posts.

Article 338 : National Commission for Scheduled Castes and Scheduled Tribes.

Article 341 : Scheduled Castes – The President ( may with respect to any state ( or union territory) and when it is a state, after consultation with the governor thereof by public notification specify the caste, races or tribes or parts of or group within caste, races or tribes which shall for the purposes of this Constitution be deemed to be scheduled caste in relation to that state or union territory , as the case may be.

The opponents of this demand claim that Scheduled Caste is a status arising out of untouchability, caste system and other disabilities associated with Hindu religion. As such, when any member of the scheduled castes leaves Hindu fold, and enters Islam or Christianity – the religions which recognize no caste system and believe in equality – he or she cannot enjoy that facility. This contention is superfluous and baseless on the following grounds:

A : Untouchability - Article 17 of the Constitution abolishes untouchability and makes its practice an offence.
Abolition of untouchability – “ Untouchabilty� is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchability� shall be an offence punishable in accordance with law.

Therefore, to assert that the Hindu system of untouchability is standing at the root of this reservation facility to Scheduled Castes ( dalits) is itself contradicting with Constitutional mandate and is also an offence likewise.

B. Caste System : To say that in Islam there are no castes is to negate social realities. Caste system in Islam has been recognized for Mandal Commission recommendations which includes many Muslim backward castes.

C. The facility of reservation continues when a member of the Scheduled Castes embraces Jain, Buddh or Sikh religions which are included in Hindu fold within the meaning of Article 25 clause (2) ,sub-clause (b) and explanation II , but are also the minority communities within the ambit of Articles 29 and 30. What this ambivalent situation makes clear is the fact that our Constitution is not making the distinction between the religions on the basis of their guiding divine principles but on their place of origin. Islam and Christianity are treated as the religions born outside the country whereas ‘Jainism’ ‘ Sikhism’ and ‘Buddhism’ are considered as indigenous creeds.

D. Islamic Principles: If the pristine Islamic monotheism and casteless society are made the basis for denying to a member of Scheduled Caste the reservation facilities when he or she converts to Islam, why then the disability arising from the Indian monogamous system is imposed upon Muslims. The most glaring instance of this is served by section 125 Criminal Procedure Code, 1973, the relevant portions of which are reproduced below.

Section- 125 Criminal Procedure Code, 1973 – Order for maintenance of wives, children and parents. ... Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation : If a husband has contracted with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

If Islam allows polygamy why a Muslim husband’s second wife is made a ‘ just ground’ for the first wife’s refusal to live with him and why under these circumstances he is made liable to pay the maintenance to his first wife.