Thursday, January 8, 2015

Justice demanded: Scrap all reservations or include Muslims also

Dr. Javed Jamil
 
Najma Heptullah, the Minority Minister, has told Muslims in no uncertain terms that they must give up the dream of reservations forever, as if Muslims dream after taking her permission. Muslims do not dream but demand reservations because as backiwards it is their right in a country where reservations are being given on the ground of backwardness. Unfortunately, some Muslim “leaders” taking cue from her, have started saying that Muslims should stop talking of the reservation at least in the tenure of the present government, as if the people of the country should make demands according to the liking or dislike of the current government.
 
Muslims are always on the losing side in the country. Whenever anyone talks of reservation of Muslims, the opponents – open and hidden, start arguing that the constitution does not provide reservation on the ground of religion. No one asks them: Does the Constitution provide for the denial of reservation on the ground of religion?
 
What a travesty of secularism and the justice that secularism demands! The Constitution’s position of not providing reservations on the ground of religion is being used to deny a big Indian population their rights on the ground of religion. If the Constitution does not provide certain rights on the ground of religion, how can it deny on the ground of religion? Denial of rights on the ground of religion must now become the central point of Muslim struggle, which should be carried in the Court of Law, Parliament as well as on streets. Those who claim to be “secular” should be forced to support the position that Muslims cannot be denied their rights on the ground of religion. Denying on the ground of religion goes against the very foundation of secularism.
 
See what has happened. In the name of “castes”, 50 pc of Hindus have ensured reservation for themselves. The argument is that it is based on castes and not religion. What a blatant misuse of logic! Only Hindis are being given reservation ostensibly on the basis of caste, and the logic is that it has nothing to do with religion. Hindu dhobis, Gujjars, carpenters, weavers, sunaars, all have reservations; Muslim dhobis, Gujjars, carpenters, weavers, sunaars do not. And they say that it is religion based and not caste based.
 
Fancied arguments are found out for denying rights to Muslims. One such argument is that there are no castes in Islam. First, if reservation is given to SCs or OBCs, it is not merely because they belong to these castes. The main reason for reservation is the backwardness and not the caste. Caste has been accepted as an additional basis because people belonging to a number of castes are almost all backward. This is also true of Muslims as a whole. If the chief criterion of reservation is ‘Backwardness”, almost all Muslims except a few (which can be excluded through creamy layer) are backward, and there is no justification why backwards can be denied reservation just on the ground of their religion. If caste is accepted as the additional criterion, irrespective of what Islam says, the ground reality is that Indian Muslims have castes. While even most of the so-called higher castes are also sufficiently backward, almost all of the lower castes are backward.
 
 
The Reservation Policy in India is purportedly for the benefit of the underprivileged classes of the country. It is a policy of the Indian government to provide affirmative action so that a percentage of government posts, public sector posts and private educational institutions posts are reserved for nominated caste members. The history of reservation in India dates back to much before Independence. But it was in Post Independence India that they assumed real significance. Wikipedia has given the summary of the major events as follows:
o    1946–1950 - From 9th December,1946 to 24th January ,1950 Constituent Assembly Debate Proceedings were going on.
o    1948- Ram Rajya Parishad issued manifesto in India’s first national Parliamentary elections in 1952 promising to provide high posts to “untouchables” in various fields.
o    26/01/1950-The Constitution of India came in force
o    1953 - Kalelkar Commission was established to assess the situation of the socially and educationally backward class. The report was accepted as far as Scheduled Castes and Scheduled Tribes were concerned. The recommendations for OBC's were rejected.
o    1955- Reports of first backward class commission (Kalelkar)
o    1956 - Schedules amended as per Kaka Kalelkar report
o    1965- "Advisory Committee on Revision of SC/ST lists (Lokur Committee)"
o    1967 and 1969- "the joint Committee of parliament on the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1967 (Chanda Committee) 1969"
o    1976 - Schedule caste and Schedule tribes Order (Amendment) Act.
o    1977 - Schedule caste student demanded that the Marathawada University in Maharashtra renamed in the honour of Ambedkar, which led to riots by upper class students.
o    1979 - Mandal Commission was established to assess the situation of the socially and educationally backward.[13] The commission didn't have exact figures for a sub-caste, known as the Other Backward Class(OBC), and used the 1930 census data, further classifying 1,257 communities as backward, to estimate the OBC population at 52%.
o    1980 - the commission submitted a report, and recommended changes to the existing quotas, increasing them from 22% to 49.5%. As of 2006 number of castes in Backward class list went up to 2297 which is the increase of 60% from community list prepared by Mandal commission.
o    1990 - Mandal commission recommendations were implemented in Government Jobs by Vishwanath Pratap Singh.
o    1991 - Narasimha Rao Government introduced 10% separate reservation for Poor Among Forward Castes.
o    1992 - Supreme court upheld reservations to Other backward classes in Indira Sawhney Case. Also see Reservations and Judiciary section.
o    1995 - Parliament by 77th Constitutional amendment inserted Art 16(4) (A) permitting reservation in promotions to the Schedule Castes and Schedule Tribes. Later it was further amended to include consequential seniority by 85th amendment.
o    1997- Riots by Dalits when a statue of Ambedkar(national leader of the scheduled castes) was dishonoured with a garland of shoes placed around his neck
o    1998 - Central Government conducted large nationwide survey for the first time to estimate economical and educational status of various social groups.. The National Sample Survey puts the figure at 32%. There is substantial debate over the exact number of OBC's in India, with census data compromised by partisan politics. It is generally estimated to be sizable, but lower than the figures quoted by either the Mandal Commission or and national Sample Survey [2]. Mandal commission has been criticised of fabricating the data. National surveys indicated that status of OBC is comparable to Forward castes in many areas http://www.business-standard.com/common/storypage.php?autono=264481&leftnm=4&subLeft=0&chkFlg=]
o    12 August 2005 - The Supreme Court delivered a unanimous judgement by 7 judges on 12 August 2005 in the case of P.A. Inamdar & Ors. vs. State of Maharashtra & Ors. declaring that the State can't impose its reservation policy on minority and non-minority unaided private colleges, including professional colleges.
o    2005 - 93rd Constitutional amendment brought for ensuring reservations to other backward classes and Scheduled castes and Tribes in Private Educational institutions. This effectively reversed the 2005 August Supreme Court judgement.
o    2006 - The Constitution Bench of the Supreme Court in M. Nagraj & Ors Vs. Union of India & Ors upheld the constitutional validity of Art 16(4) (A), 16(4) (B) and proviso to Art 335.
o    2006 - Reservations introduced for Other backward classes in Central Government Educational Institutions. Total Reservation went up to 49.5%. Also See Recent Development.
o    2007 - Supreme Court give stayed on OBC reservation in Central Government Educational Institutions.
o    2008 - The Supreme Court of India on 10 April 2008, upheld the Government's move for initiating 27% OBC quotas in Government funded institutions. The Court has categorically reiterated its prior stand that "Creamy Layer" should be excluded from the ambit of reservation policy. The Supreme Court avoided answering the question whether reservations can be made in private institutions, stating that the question will be decided only as and when a law is made making reservations in private institutions. The verdict produced mixed reactions from supporting and opposing quarters. Several criteria to identify creamy layer has been recommended, which are as follows: Those with family income above Rs 250,000 a year should be in creamy layer, and excluded from the reservation quota. Also, children of doctors, engineers, chartered accountants, actors, consultants, media professionals, writers, bureaucrats, defence officers of colonel and equivalent rank or higher, high court and Supreme Court judges, all central and state government Class A and B officials. The court has requested Parliament to exclude MPs’ and MLAs’ children, too.
o    2010 - The Supreme Court held that if the state wants to frame rules with regard to reservation in promotions and consequential seniority it has to satisfy itself with quantifiable data that is there is backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an exercise was undertaken by the state government the rules in promotions and consequential seniority cannot be introduced.
 
The reservation policy of India has effectively hit Muslims in a big way. The reservation for Scheduled Castes was introduced immediately after Independence. Dalits converted to Christianity and Buddhism also got the benefit at a later stage. But Dalits converted to Islam are still not given the same benefit. The reservation for Scheduled castes and then Other Backward classes (with failure to clearly fix a quota for Muslims) has left much lesser seats for Muslims to compete than they would have got if there was no reservation at all. The mushrooming of tens of thousands of Private institutions of all kinds in the country has introduced another kind of Reservation – the Reservation for the Rich, which again hit the Muslim community in a big way because less number of Muslims are likely to be able to pay the exorbitant fees that good private institutions demand. We cannot contemplate a situation where reservation policy can be scrapped altogether. We have no other option other than demanding a quota for Muslims. Unfortunately, Muslims are divided among themselves as to whether the reservation for Muslims should be limited to backward classes within Muslims or it should include Muslims as single backward community as a whole. Obviously, clashes of interests are playing a part. This has to be sorted out at the earliest if we have to press a unified demand.
 
The tangle and the differences on the issue are very well summed up in an article on the issue by Naushad Ansati. It will be worthwhile to quote from that article here:
 “Now, the Supreme Court, on January 21, 2011, has framed questions to test the validity of the demand based on the aforementioned Rangnath Misra Commission recommendation.
“The existence of caste system or reservation for Dalit/backward Muslims has always been a controversial issue. It is an undisputed fact that though there is no caste system in Islam; the Holy Qur’an and the Prophet’s sayings are crystal clear that all human beings are equal; Indian Muslims did develop a hierarchical structure by characterizing numerous biradaris. Some Muslims established superior status for themselves as ashraf or noble on the basis of their foreign descent, while some indigenous converts are commonly referred as ajlaf or ‘lowly’. Some Islamic jurists too, deviating from Islamic teachings, in the name of kufu i.e. parity in marriage between the parties, legitimize caste system. Muslim law of marriage recognizes the doctrine of kufu in all vital respects including social status and descent, which, in India, means nothing but casteism.
“The Sachar Committee Report, on the existence of castes among Indian Muslims, says: “The present day Muslim society is divided into four major groups (i) the ashrafs, who trace their origins to foreign lands, (ii) the upper caste Hindus who converted to Islam, (iii) the middle caste converts whose occupations are ritually clean, (iv) the converts from the erstwhile Untouchable castes – Bhangi (scavengers), Mehtar (sweeper), Chamar (tanner), Halalkhor (Dom) and so on”. (p. 192)
“On the level of backwardness, the Sachar Committee finds that ‘out of every 100 workers about 11 are Hindu OBCs, three are Muslim-general and only one is Muslim OBC (p. 209)’, whereas the population of OBC Muslims is as much as 75% of the total Muslims’ population.
“The Sachar Committee’s findings further suggest: “The incidence of poverty is highest among Muslim-OBC (38%) followed by Muslim General (35%)… Overall, the conditions of Muslim-OBCs are worse than those of Muslim-General …Within the Muslim community a larger percentage of Muslim OBCs fall in low income category as compared to Muslim-General.” (The Muslim OBCs and Affirmative action)….
“Similarly, the Justice Rangnath Misra Commission finds prevalence of castes among various sections of the Indian citizenry. It concludes: “The caste is in fact a social phenomenon shared by almost all Indian communities irrespective of their religious persuasions”. (Para 16.3)
“Historically, a good number of Dalits converted to Islam. But after conversion their socio-economic status remained impoverished, backward and downtrodden. Most of them continued with their traditional professions as artisans, peasants and labourers, except those which were considered impure or unacceptable in Shariah. Nevertheless, of late, some of these Muslim caste groups got Islamised. They also became organized and given themselves Muslim nomenclatures. They identified and associated themselves with Islamic personalities. For example, the butchers designated themselves as Qureshi; the weavers as Ansari; the tailors as Idrisi; the Bhishtis as Abbasi; the vegetable vendors as Raeen; the barbers as Salmani; the carpenters and blacksmiths as Saifi etc. By joining the fold of Islam they did not get such a boost to their talents and abilities that they could face equal competition with all others.
“Like any other socially identifiable group Dalit Muslims too started searching their face in governance; in the services, particularly, at par with their counterparts among Hindus. In a democratic set up this is a quite natural and justified aspiration. They demand caste-based reservation as given in the constitution. They argue that according to Kumar Suresh Singh Report of SCs, there are some 35 Muslim castes that have SC background and engaged in occupations traditionally associated with SCs. They demand that Muslim SCs be included in the SC category. If Sikhs and Buddhist SCs, which religiously don’t
“In the famous Indra Sawhney Case the Supreme Court had decided that ‘a caste can be and quite often is a social class in India’. Further it conceptualizes: ‘If it is backward socially, it would be a backward class for the purpose of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectives for the purpose of Article 16(4). Identification of the backward classes can certainly be done with reference to castes among, and along with other occupational groups, classes and section of people. (AIR 582 SC 1993).
“Syed Shahabuddin, ex-MP and President of All India Majlis-e-Mushawarat, says: “if caste can be interpreted as class, why not religion; that all Muslims are, socially and educationally, marginalized and deprived”. However, at another place, his alternative suggestion is ‘to limit reservation to non-Ashraf only who constitute 90% of the Community and thus about 12% of the national population. With their average level of backwardness being almost equal to that of SC/ST, they would be entitled to a separate sub-quota of 11%’ (‘Muslim Community, Muslim OBCs and Reservation’, Muslim India, May 2007) appeared to be more “
There are however others who have argued that “Muslims want their due share ‘from original bag and not from other’s bowl.’ They have been pointing out that if Muslims are given a share in 27 pc OBC category, the Hindu OBCs will not accept it, and a conflict between Muslims and Hindu Dalits will ensue. They also feel that that the OBC grouping has been widened with inclusion of many communities and sections that were not in the list earlier and there is a strong and genuine demand for enhancement of the existing 27% cap. They have asked the government to take tangible step for reservation to Muslims for their social and educational emancipation and overcome constitutional hurdles, if any, with appropriate steps.
 
 
Rangnath Misra commission has argued for reservation of Muslims within the 27 pc OBC quota. If Mandal Commission Report is followed, this would mean that Muslims should get around 9 percent quota in reservation.
 
The controversy however still remains as to whether Muslim quota should be carved out of the OBS quota of 27%, a position supported by several political parties, or there should be a separate quota for Muslims. There seems to a consensus on 10 pc separate quota for Muslims separately from the OBC quota; ideally this should be 15 pc, which is the percentage of Muslims in the whole country. In state services and educational institutions, the Muslim quota should be in accordance with the percentage of Muslims in that state. 
 
We also have to do something about what I have called “Reservation of the Rich”. The future of a large population lies not in government owned institutions but in ever growing number of private institutions. Muslims should contemplate about either making a demand to the government to force the private institutions to halve the fees for Muslims seeking admissions in private colleges or a Muslim committee must have direct negotiations with the Managements of the universities and colleges about the need of reducing the fees for Muslim students who have other requisites for admissions in these institutions.
 
 
Reservation of “majority” candidates in “minority institutions”
 
While the Constitution allows establishment of minority institutions in the country, they are not allowed to reserve more than 50 percent seats for the minority candidates. This in effect means that they are under compulsion to reserve 50 percent seats for the candidates of majority community. This may sound excellent idea for the sake of preserving the secular identity of the country. But eventually again it is hitting the minority communities especially Muslims. This could have been plausible if the number of Muslim institutions in the country was around or more than their percentage in the population or their numbers in the non-minority institutions was around or more than that. But when there is a massive difference on both fronts, there is no reason why Muslims should be forced to fix as high as 50 percent seats for Hindu candidates.  This means that Muslim institutions have to reserve seats for Hindus in a percentage, which is roughly about 60 pc of the population percentage of Hindus in the country. This would mean that if justice is to prevail, all institutions in the country should reserve at least 9 pc seats for Muslims.   Due to this policy of reservation of not more than 50 pc for minority students in minority institutions, the institutions like St Stephen’s College, Aligarh Muslim University and Jamia Millia University end up producing more Hindu doctors, engineers and other specialists than Christians or Muslims.
 
Finally, Muslims should tell the nation in no uncertain terms that either the whole reservation policy should be dropped without delay or Muslims should be given reservations without delay. They must lodge a public interest litigation for the same.

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