Is Muslims demanding a 5 per cent quota in Maharashtra unconstitutional?

Moin Qazi
Moin QaziDec 17, 2016 | 16:31

Is Muslims demanding a 5 per cent quota in Maharashtra unconstitutional?

We are back to debating reservations (quotas) which are roaring back into the forefront of political life in Maharashtra. The Maharashtra legislature, which is presently holding a session at Nagpur, is facing an avalanche of protests on issues of reservations, with Muslims mobilising unusually huge numbers.

On December 15, they staged one of the biggest and most vehement demonstrations witnessed in the state in recent times. More than 70,000 protesters converged from different parts of the state under the leadership of Jamiate Ulama–i-Hind. Maulana Syed Mahmood Madani, general secretary, Jamiat Ulama-i-Hind, who led the protest, reminded people that the JIH had opposed the two-nation theory and chosen India — and that the community should not be singled out.

In June 2014, in an obvious pre-poll measure, the Congress-NCP government in Maharashtra granted 16 per cent reservations in jobs and education to Marathas, along with a five per cent quota for Muslims, over and above the existing 52 per cent reservations given to different backward caste groups in the state.

This move was stayed five months later by an interim order from the Bombay High Court — a stay that has remained even after both Houses of the state legislature cleared the bill granting 16 per cent reservations to Marathas. What is significant is that with the change of guard in the state following the Assembly elections in October 2014, the Muslim reservation agenda has been dropped. While the court had upheld the Muslim reservation quota in education, the government has scrapped even that — this has peeved the community.

In January 2016, Opposition members protested against the scrapping of the five percent reservation to Muslims in education by the Devendra Fadnavis-led government. Credit: PTI

Former chief minister Prithviraj Chavan strongly demanded in the legislature restoration of at least education quota for Muslims, which his government had introduced in 2013 in the form of an ordinance. Chavan said that he was not demanding reservations on the basis of religion, but social factors, as the community hadn't progressed on many fronts, including education, in all these years.

"We provided Muslims reservation in education after working on it for over two years. We extensively studied all factors. On the basis of statistical data collected for two years, we decided to provide them reservation in education and jobs. Even the Bombay High Court upheld our decision to provide five per cent reservation in educational institutions to Muslims, but the new government only gave hollow assurances without giving them actual benefits," he said.

It is interesting to note that the PIL on which the high court gave its verdict had contended that between 1962 and 2004, over 1,200 MLAs out of about 2,000 — 55 per cent were Maratha and more than 72 per cent cooperative institutions were controlled by the Marathas.

The Marathas have an outsize presence in most spheres. As many as 12 chief ministers of Maharashtra have been from Marathas. The community controls land and cooperative sectors, particularly sugar factories. Most of the education institutions are owned and run by the Maratha community.

On the issue of providing reservation to Muslims, the court had said: "In so far as reservations for specified Muslim communities are concerned, there exists sufficient material or quantifiable data to sustain their classification as "special backward class".

The 22nd report of the Maharashtra State Commission for Backward Classes headed by Justice RM Bapat had rejected the demand for Maratha reservation.

The new government is actively pursuing the Maratha reservation agenda and has, in fact, sought the assistance of the best legal brains to bolster the case in the courts. The chief minister, Devendra Fadnavis, has said that Harish Salve, a top lawyer, would also be actively involved.

The UPA government had premised reservation to Marathas and Muslims on the ground that the two communities were socially and educationally backward and also economically poor. The government said it had taken into consideration recommendations of the Rajinder Sachar and Mehmood-ur-Rehman committees, both of which had recommended reservation for Muslims while arriving at the decision to provide quotas for them.

The Mehmood-ur-Rehman committee, which was specifically constituted for studying the problems of Maharashtra’s Muslims, found that Muslims make up around 10-12 per cent of Maharashtra’s population, but have little presence in government jobs and educational institutions.

Unemployment was high among its youth and they were often subjected to official apathy and police brutality. Around 60 per cent of urban and rural Muslims in Maharashtra live below the poverty line (BPL) and just about 25 per cent of them are marginally above the poverty line. The Mehmood-ur-Rehman committee recommended 8-10 per cent reservation in government jobs.

The 52 per cent seats in government jobs and educational institutions were already reserved for the targeted groups and the Congress-NCP government had, in the run up to the Assembly poll, raised it to 73 per cent by announcing 16 per cent quota for Marathas and five per cent for Muslims.

Though the constitutionality of the use of religion as a criterion for selecting “backward” classes has not been explicitly under challenge, the government and courts have rejected its application in practice; hence, minority groups were not identified as “backward” for the purpose of special safeguards for the disadvantaged.

There are three main reasons advanced: (i) it was incompatible with secularism; (ii) in the absence of a caste system among Muslims there was no overt social discrimination suffered by them to justify special measures; and (iii) it would undermine national unity.

The publication of the Sachar Commission report in late 2006, and subsequent surveys, confirmed what many had feared or suspected for a long time: Indian Muslims were lagging behind the rest of the country on nearly all indicators of development, income, education, representation in state institutions and the government.

The Gopal Singh committee recommended three to four percent reservation for Muslims in class three and four categories of state-run departments. The Sachar committee, in its report, described the situation of Muslims thus:

“The Muslim community by and large is lagging behind other communities in terms of its access to public and private sector jobs education infrastructure and credit and more importantly the gap between Muslims and other communities has not closed over the years rather it has increased in some dimensions.”

The committee, however, didn’t recommend any reservations for Muslims, but concluded that there is need to maintain the diversity in the public and private institutions of the country and for that it recommended the establishment of the diversity index.

The National Commission for Religious and Linguistic Minorities under the chairmanship of Ranganath Mishra recommended reserving 15 percent in the central and state government services for linguistic and religious minorities, out of which 10 percent was recommended to be reserved for Muslims and five percent for other minorities.Taken together, these and other studies bring forth sufficient evidence to substantiate the view that “inequality traps prevent the marginalized and work in favour of the dominant groups in society”.

The Kundu report said that “development for the Muslim minority must be built on a bedrock of a sense of security”.In India, reservations have been formulated on the principles of social justice espoused in the Constitution. The Indian Constitution provides for reservation for historically marginalised communities, now known as the backward castes. But the Constitution does not define any of the categories, identified for the benefit of reservation. One of the most important bases for reservation is the interpretation of the word "class".

The expression, “Backward Classes” in Article 16 is caste and religion neutral. According to the report of the National Commission for Religious and Linguistic Minorities, “while articles 15 and 16 empower the state to make special provision for backward classes, they prohibit discrimination only on the ground of caste or religion”. Therefore, any caste or religious group or minority, if socially and educationally “backward,” may come under the ambit of “backward” classes and are thus entitled for reservation benefit.

Social backwardness is a fluid and evolving category, with caste as one of the markers of discrimination. Gender, culture, economic conditions and other factors can influence capabilities, and any one of these, or a combination of these, could be the cause of deprivation and social backwardness.

Moreover, the notion of social backwardness itself could change as the political economy transforms from a caste-mediated, closed system to a more open-ended, globally integrated and market-determined matrix marked by high mobility and urbanisation.

In one of its recent and well known judgments, the Supreme Court has made an important point about positive discrimination in India. Justices Ranjan Gogoi and Rohinton F Nariman said:

“An affirmative action policy that keeps in mind only historical injustice would certainly result in under protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the state.”

Backwardness is a manifestation caused by the presence of several independent circumstances, which may be social, economic, cultural, educational or even political. New benchmarks may have to be evolved for assessing it, with lesser reliance on caste-centric definition of backwardness. This alone can enable recognition of newer groups requiring palliative action.

Muslims can certainly be eligible for at least some forms of positive discrimination among new “backward” groups.

While affirmative action and reservations for disadvantaged groups continue to be a historical necessity, there is an urgent need to reassess the conception of backwardness and broaden it beyond castes, on account of the new dynamics of social stratification where we find economic deprivation is creating new classes of backwardness. The present reservation policies recognise only caste-based social stratification.

Second, the inequalities of gender and class get discounted, as do the disadvantages of belonging to a particular religious minority. Thus, the very concept of social backwardness is turning out to be flawed.

The pervasive discrimination of Muslims in India must compel us to re-examine facile assumptions about social backwardness stemming from historically over-simplified categories and the easy satisfaction over the secularisation process going forward as a result of the provision of minority safeguards in the Constitution.

India’s economy is booming, but Muslims continue to suffer great economic deprivation. The government owes an obligation to act. It makes both good economics and politics, if a fraction of its new economic gain can be used to correct the negative trajectory of Muslim reality in India. The relative economic condition of Muslims has suffered significantly compared to everyone else, in spite of spectacular growth.

The government has been aggressively pursuing the agenda of reforms in the personal laws of Muslims claiming that it has genuine concern for Muslim women. Economic backwardness is a much harder and bitter reality for Muslims and the state can’t turn away from it — particularly when it is training its telescopes on the community's social condition. It will amount to questioning the purity of the nationalism of Muslims, the same way the upper castes have questioned the purity of the spiritualism of the so-called backward castes. 

It will make no sense if the government uses quotas purely as a vote garnering tool. It will only confirm what many have been sagely saying: "In our country now, you can't go forward unless you’re backward."

Last updated: December 17, 2016 | 16:37
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