Is Muslim quota Constitutional, because it has been widely criticized as illegal and unconstitutional?
In the Constituent Assembly Debates (CAD) we find the efforts to include minorities was negatived, and it is thus clear that minorities are not to be included in the term “backward classes” : This again is fallacious and incorrect. The terms have been used in a historical situation with a specific intent which no longer obtained after partition, and the conclusion is erroneous. The statements and answers of Dr. B R Ambedkar establish that the term “backward classes” was used as an alternative for minorities (after several allied expressions like “minorities and classes”, “classes and minorities”, “classes including minorities”, etc., were all considered) only because the expectation in April 1947 was that there would still be the possibility of a unified India (including India as it is now, and the present Pakistan and Bangladesh) could be realized and politically actualized. Once the country split up, the earlier seemingly valid rationale for not having the word minority evaporated, and the need was to have the word mentioned. However, the trauma and the strong feelings were a factual reality and in the heat of the times, the removed or substituted word could hardly have been sought to be re-included without serious discord.
The correct picture that emerges is that the term classes was used as an inclusive term that would encompass minorities as well as other classes of people. A further reading of Articles 15 (4) and 16 (4) read with Article 29 (2) would be informative and illustrative :
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-
1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) ....
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
16. Equality of opportunity in matters of public employment - (1) ...
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or 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.
(4A) Nothing in this article shall prevent the state from making any provision for reservation in matters of promotion of any class or classes of posts in the services under the State in favour of Scheduled Castes and Scheduled Tribes which, in the opinion of the State are not adequately represented in the services under the state.
The Constitution rejects religion-based reservations. How, then, do you justify it?
It does not. Muslims have the sole homogenous feature that all subscribe to the same religion, and any reservation for Muslims would inevitably be attacked by opponents of the move as being religion-based and therefore violative of the equality clause of the Constitution. The reservation for Muslims, who do subscribe to the same religion, is not sought on that as basis or for that reason : it is sought on the basis of their backwardness and for the reason that that backwardness required to be addressed by affirmative action on the part of the State. Also, as would be seen from submissions below, the Constitution does enable such reservation. (It is only discrimination AGAINST that is precluded on basis of race, religion, sex, caste, etc., and not affirmative action FOR backward persons. There is a misguided judicial attempt to claim discrimination is proscribed. It is not. The operative word is against, and while discrimination against is prohibited, discrimination in favour of, constituting affirmative action, is not only not prohibited, it is actively required, recommended and even mandated by the Constitution itself, as we shall see.
If we see Article 16 (4) it refers to ANY backward class of citizens. If we see Article 15 (4) it refers to ANY socially and educationally backward classes of citizens OR for the scheduled castes and scheduled tribes. The word ANY hardly needs elaboration. Classes, as a plural of class, is also indicative of constitution makers’ and parliament’s intent. The disjunctive OR between the words “backward classes of citizens” and “scheduled castes and scheduled tribes” (as this OR that) establishes that the backward classes are categories or classes OTHER THAN scheduled castes and scheduled tribes which are separately listed.
When we read Article 29 (2) and see that the words used are “only on grounds of religion, race, caste, language or any of them”, and 15 (4) states (non-obstante – like) “nothing in this article or in Article 29 (2) shall prevent the state from making any provision FOR the advancement of any socially and educationally backward classes…” absent intellectual dishonesty, we are able to appreciate that a provision FOR backward classes can be made even on the basis only of religion, if persons subscribing to any particular religion are found to be backward, and like sec 151 of the CPC, the perception is of power inherent (“nothing in this article or in Article 29 (2) shall prevent the state”), and clear unequivocal expression is given to the fact that nothing prevents the exercise thereof in appropriate cases.
Likewise, Arts. 330, 332, 335 and 338 speak of SCs and STs, whereas 331 and 333 and 336 refer to Anglo-Indian community : the Anglo-Indian community comprises exclusively of Christians. That provision is thus based on religion alone. If Anglo-Indians are perceived to be only predominantly (and not exclusively) Christian, even then the provision is seen as one based only on “race”. While thus separate provision has been made for SCs and STs and for Anglo-Indians, Article 340 refers to “commission for backward classes” : when seen as distinct from SCs and STs and Anglo-Indians, who can these other backward classes be ? Obviously it would refer to other citizens who may be of any religious or other denomination, and are in the opinion of the state, backward. Muslims qua Muslims stand squarely covered.
What exactly does the Indira Sawhney case in the Supreme Court say on the issue of Muslim quota?
In Indra Sawhney, the Supreme Court’s guideline was stated thus : “for example, (the BCC) may take up the Muslim community (after excluding those sections, castes and groups, if any, who have already been considered)…”
…..Para (4). The doctrine of equality has many facets. It is a dynamic, and an evolving concept. Its main facets, relevant to Indian Society, have been referred to in the preamble and the articles under the sub heading “Right to equality”- (Articles 14 to 18). In short, the goal is “equality of status and of opportunity”. Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several articles in Part IV (Directive Principles of State Policy). “Justice, Social, Economic and Political “, is the sum total of the aspirations incorporated in Part IV
(E). Constitution of India, Art.340- Backward classes commission – Conclusions given in its report – cannot always be scientifically accurate - Sufficient if relevant data and material given in report justify the conclusions. (Per B.P.Jeevan Reddy,J. (for himself and on behalf of M.H.Kania, C.J.and M.N.Venkatachaliah, A.M.Ahmadi, JJ.)) AIR 1972 SC 1375, Approved (Para 39)
….. para. 39. Again, in State of Andhra Pradesh v. Balram (AIR 1972 SC 1375), a case arising from Andhra Pradesh, a Division Bench (Vaidyalingam and Mathew, JJ.) adopted the same approach and upheld the identification made by Andhra Pradesh Government on the basis of caste. Answering the criticism that the Backward Classes Commission appointed by the state Government did not do a Scientific and job, the Bench observed :
“In our opinion, the Commission has taken considerable pains to collect as much relevant material as possible to judge the social and educational backwardness of the persons concerned. ... If the commission has only to go on doing the work of collecting particulars and materials, it will be a never-ending matter. In spite of best efforts that any commission may make in collecting materials and data, its conclusions cannot be always scientifically accurate in such matters. Therefore, the proper approach, in our opinion should be to see whether the relevant data and materials referred to in the report of the Commission justify its conclusions.....”
...Art. 16 (1) does permit reasonable classification for ensuring attainment of equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality.
……Para. 57. …… In our respectful opinion, the view taken by the majority in Thomas is the correct one. We too believe that Article 16 (1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such Classification, put in to place the matter beyond controversy. The “backward class of citizens” are classified as a separate category deserving a special treatment in the nature of reservation of appointment/posts in the services of State.
…..Para. 80. Pausing here, we may be permitted to make a few observations. The speeches of Dr. Ambedkar may have to be understood in the context of the then obtaining ground realities viz. (a) Hindus constituted 84% of the total population of India. And among Hindus, caste discrimination was unfortunately an unpleasant reality; (b) caste system had percolated even the Non-Hindu religions – no doubt to varying extents.
(c). It is significant to notice that throughout his speech in the Constituent Assembly, Dr.Ambedkar was using the word “communities” (and not ‘castes’) which expression includes not only the castes among the Hindus but several other groups. For example, Muslims as a whole were treated as a backward community in the princely State of Travancore besides several sections/ denominations among the Christians. The word “community” is clearly wider than “caste” – and “Backward communities” meant not only the castes – wherever they may be found – but also other groups, classes and sections among the populace.
But any program towards betterment of these sections-classes of society and any program designed to eradicate this evil must recognize this ground reality and attune its program accordingly. Merely burying our heads in the sand – Ostrich-like – wouldn’t help. One cannot fight his enemy without recognizing him. The U. S. Supreme Court has said repeatedly, if race be the basis of discrimination past and present – race must also form the basis of redress programmes though in our Constitutional scheme, it is not necessary to go that far. Without a doubt, an extensive restructuring of socio-economic system is the answer. That is indeed the goal, as would be evident from the preamble and Part IV (Directive Principles).
For identification of backward classes one has to begin somewhere – with some group, class or section. There is no set or recognized method. There is no law or other statutory instrument prescribing the methodology. … There is also no rule of law that a test to be applied for identifying backward classes should be only one and /or uniform. In a vast country like India, it is simply not practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, they too can be treated as backward.
….Para. 83. ...
…. Besides castes (whether found among Hindus or others) there may be other communities, groups, classes and denominations, which may qualify as backward class of citizens. For example, in a particular State, Muslim community as whole may be found socially backward.... For example, it may take up the Muslim community (after excluding those sections, castes and groups, if any, who have already been considered) and find out whether it can be characterized as a backward class in that state or region, as the case may be...
…what is the effect of the word ’only’ in Article 16(2). In the context it has been used it operates, both, as permissive and prohibitive. It is permissive when State action, legislative or executive, is founded on any ground other than race, religion or caste. Whereas it is prohibitive if it is based exclusively on any of the grounds mentioned in Article 16(2) [Javed Beg v. Union of India (AIR 1981 SC 794)].
(c) Social and educationally backward class under Article 340 being narrower in import than backward class in Article 16(4) it has to be construed in restricted manner. And the words educationally backward in this Article cannot be disregarded while determining backwardness.
(3) Reservation under Article 16(4) being for any class of citizens and citizen having been defined in Chapter II of the Constitution includes not only Hindus but Muslims, Christians, Sikhs, Budhs, Jains etc. the principle of identification has to be of universal application so as to extend to every community and not only to those who are other converts from Hinduism or some of whom (who) carry same occupation as some of the Hindus.
... It is true that no decision earlier to it specifically said so, yet such an impression gained currency and it is that impression which finds expression in the above observation. In our respectful opinion, however, the said assumption has no basis. Clause (4) of Art.16 does not contain the qualifying words “socially and educationally” as does clause (4) of Art.15. It may be remembered that Art. 340 (which has remained un-amended) does employ the expression ‘socially and educationally backward classes’ and yet that expression does not find place in Art.16(4). The reason is obvious: “backward class of citizens” in Art.16(4) takes in Scheduled Tribes, Scheduled Castes and all other backward classes of citizens including the socially and educationally backward classes. Thus, certain classes which may not qualify for Art. 15 (4) may qualify as backward class of citizens for the purpose of Art. 16 (4). ... It would, thus, be not correct to say that ‘ backward class of citizens’ in Art.16(4) are the same as the socially and educationally backward classes in Art.15(4). Saying so would mean and imply reading a limitation into a beneficial provision like Art.16(4). Note that yet the Courts have not hesitated in reading a limitation into 15 (4) that is not warranted by the wordings employed by Parliament or Constituent Assembly. They have interpreted “prohibition of discrimination AGAINST” as equivalent to “prohibition of affirmative action in favour of” ! ]]
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