|Reservation for Muslims|
AFFIRMATIVE actions refer to at least three kinds of measures available to help the socially disadvantaged: affirmative action, positive discrimination, and strict quotas in school/college admissions and jobs. It can take many forms, from setting up special schools or vocational guidance facilities to declaring that the government will encourage specific groups to apply for jobs. Quota-based seats for scheduled castes and scheduled tribes in educational institutions, legislative bodies and public offices was seen as a way of ensuring equal opportunity for people who had been excluded, subordinated and denied social and economic resources. Caste-based distinctions, especially untouchability and forced segregation were seen as forms of discrimination that placed the excluded community in a terribly disadvantaged position. Reservations, above all, were an acknowledgement of this injustice and a means of bringing these hitherto-ostracized sections into the social and political mainstream. The policy of reservations in government jobs for the scheduled castes and tribes has to some extent guaranteed their participation in public employment.
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.1 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.
Secularism as defined in the Indian constitution can only mean that the state should have equal respect for all religions and/or should maintain equal distance from all religions. But this doctrine is not consistently applied to all religious collectivities, which has clear implications for the policy of reservations.
The most obvious example is the prevalent view that Muslims and Christians in India are outsiders. Both in the constitution and the Hindu Code Bill, Hindus include Jains, Buddhists and Sikhs, while Muslims and Christians are external to this fold because their religions were born outside India. A second type of argument is derived from the perception that minority religions are different in the specific sense that they do not accept the caste system and reservations are principally a matter of social justice or reparation for those who were the victims of oppression and discrimination arising out of the Hindu caste system.2 Since Muslims do not recognize caste there is no overt discrimination suffered by them to justify preferential treatment.
Athird is the tendency to view reservation based on religion as threatening to national identity and the cohesiveness of the state. This argument had precedents in the nationalist positions articulated in the Constituent Assembly debates. The general apprehension articulated therein and the sense of uneasiness which continues to mark government policy led to a concern that since any form of special representation or reservation for minorities might be divisive and had in fact led to Partition, any policy proposals aimed at increasing minority representation in government and so on might once again give an impetus to political division and separation.
Before independence, the British had inducted communities into the political process by granting separate representation to the Muslim community in various legislative bodies. The decisive shift occurred in the Constituent Assembly debates. Although the Assembly’s Advisory Committee on Minorities and Fundamental Rights considered the policy of continuing reservations for Muslims, reservations ultimately were a casualty of Partition. Initially, minorities were an inclusive category encompassing religious minorities as well as the scheduled castes and scheduled tribes. It was only subsequently in the process of the drafting of the constitution that the term itself came to be renegotiated and redefined. It was widely agreed that only the two latter groups deserved to be the beneficiaries of a system of affirmative action. Their protection was in no small measure due to the earlier assembly resolution that had implicitly declared them Hindus. Religious minorities and lower castes were distinguished since the latter were seen as part of the Hindu community and therefore different.
The concept of minority was dropped altogether as inappropriate for purposes of affirmative action policies. Social discrimination of a group in the Hindu caste system was considered the only legitimate ground for group-preference provisions. However, in 1956 the Sikhs fought for their rights and were included with Hindus in reservations for scheduled castes. Again in 1990, Buddhists were accommodated along with Hindus and Sikhs in this category. Only Muslims and Christians were left outside the reservation umbrella. Conversion to Christianity or Islam legally disqualified Dalits from the benefits of reservation given to scheduled castes.
Government policy seeks to distinguish between the political principles of minority relevant for protecting cultural identities and the social principle of backwardness to deal with issues of justice and equity. However, this distinction between the protection of identity of a social group and the promotion of its rights and interests is deeply problematic since no group can have one without the other. It creates a vicious cycle resulting in the denial of equality in one sphere and affirmation in the other. The refusal to countenance any suggestion of affirmative action is rooted in this idea of differentiated spheres of equality, which was being extended in one even as it was denied in the other. The benefits that are likely to accrue from the protection and promotion of cultural diversity are often considered adequate compensation for the disregard of substantive rights.
Despite the success of some individuals and the high visibility of celebrities in cinema, sports and music, Muslims on the whole have not done well since independence in such areas as education, government service, media and the organized private sector. There is enormous documented evidence to show that on all indices – income, health, education, employment – Muslims rated dismally lower than other communities. The 50th and 55th rounds of the NSSO (1993 and 1999-2000) reveal that Muslims face greater deprivation in education and jobs than any other population group demarcated by religion. Even though Muslims are disproportionately urban, they are under-represented in regular salaried work in the government sector. They have a marginal presence in the organized sector, which includes both public and private sector employment, government and legislatures.3
India has become much more proportional in its approach than it was under Nehru or Indira Gandhi, but Muslims have not benefited from it. The one major exception to this pattern of exclusion was the Mandal Commission, which had declared over 80 Muslims groups to be backward. The Commission drew up a list of 400 castes classified as backward; most of them belonged to the shudra varna. It also declared over 80 Muslims groups to be backward and thus categorized half of the Muslim population as backward.4 According to the data used, Muslims constituted a little over 8% of the 27% OBC population; backward caste Muslims were over half of the total Muslim population of 11.2%; and those specified as backward included groups such as weavers, oil crushers, carpenters and dhobis.5 In a major policy shift the Mandal Commission made provisions for reservations for these groups. Various states were directed to implement these provisions with the proportion of reserved positions that would go to them left to state governments to decide.
The Mandal Commission objected to declaring Muslims as a whole a backward community, enjoying the same status as scheduled castes or tribes.6 The official policy was premised on the principle of social and educational backwardness of any class, with such backwardness established by certain defined criterion. It recognized specific communities cutting across religion as backward on the basis of a time-tested criterion of backwardness evolved by different states. According to this understanding, any religious community comprises both backward and non-backward sections. As in the case of Hindus, there are caste-like formations among Muslims, which the Commission recognized as the Muslim counterpart of a backward class. However, it is unclear whether the Muslim OBC category refers to the backward-forward division or it was meant to include all occupational groups and all converts of lower ranks known as ajlaf (low-born), simply excluding some advantaged groups at the top. This is important because in the case of minorities the issue is not just intra-group but also inter-group inequality.
As things stand, the Muslim OBCs have been included in backward lists at the central and state level. But arguably they are not getting the actual benefits of this provision. This should be obvious from the continued under-representation of Muslims in the central services. In 1981, they were 2.98% among a total of 3883 IAS officers, while in 2000 they were marginally less at 2.83%.7 A guaranteed minimum within the 27% OBC quota would increase the likelihood of Muslims getting the reserved jobs. As of now, the most prosperous among the backward castes have secured a disproportionate share of benefits and those at the bottom, including the majority of Muslims, have got very little.8
Thanks to the policy of a few state governments to include Muslims in the category of backward castes/classes, some Muslim groups now receive reservation in Kerala, Tamil Nadu and Karnataka, most notably, which have gone ahead to list Muslims as a backward caste. In Kerala, 12% of government jobs are currently reserved for Muslims, who account for 22% of the state’s population. But this benefit is available to those who come from families earning less than Rs 2.50 lakh annually. In Tamil Nadu, Muslims are entitled to reservation under the 30% category earmarked for OBCs. Karnataka brought in 4% reservation for Muslims in 1994; again the benefit is given to applicants who come from families that have an annual income below Rs 2 lakh or hold land below a certain ceiling or do not have a gazetted officer as parent.
It is necessary at this juncture to advert briefly to the controversy between caste and community that is frequently alluded to in the debate on reservations. Two levels of equality are at stake: intra-group and inter-group. Some Muslims are more interested in inter-group equality and hence press to be classified along religious community lines while the vast majority of the community demand that caste stratification be used for the classification of the Muslim community for the purpose of reservations.
One is a proposal for treating Muslims as a backward class and so entitled to the benefits of reservations. With the tacit support of the Congress, this demand was stated at a Convention on Reservation in New Delhi in 1994 where this section of Muslims asked (i) for the whole community to be declared a backward class countrywide; and (ii) that the benefits of reservations should accrue first by priority to Muslims notified as OBCs and that candidates belonging to other Muslim sub-communities (for example, ashraf) be admitted to those benefits only if the Muslim quotas remain unfilled.9 Supporting a separate quota for Muslims, they emphasized the necessity of ‘cutting the cake’ not just horizontally by class and caste, but also vertically by religion, to evenly distribute opportunities. This was because in their view ‘the entire Muslim community in the country forms a backward class.’
This proposal was strongly opposed by the backward castes among the Muslims who claim that the elites of the Muslim community have monopolized the benefits of even token representation in government jobs. They claim that the marginalization of the backward caste among Muslims is of the same order as the marginalization of Muslims as a whole vis-à-vis the Hindus. As a result, the backward Muslims find themselves out of legislative assembly and government employment. They are, consequently, totally opposed to the classification of the whole community as backward and call for reservations in employment and education mainly for the backward among them.10
The backward classes already included in the lists of OBCs fear that the affluent and educated sections will usurp the reservation benefits under a Muslim quota and their opportunities for upward social mobility would be severely curtailed. The bottom line is that both sides to this dispute want inclusion in the backward category because they are apprehensive that unless Muslims get on the backwardness platform, they would have to compete for a diminishing proportion of unreserved seats with the larger pool of Hindu upper castes.
The case for reservations for Muslims is strong on many grounds, most explicitly, because they are discriminated and under-represented in the public services. However, religious quotas are not an effective means of achieving the desired objective. Separate quota for Muslims is a divisive issue and is sure to provoke a communal backlash from the Hindu right which opposes the very idea of any special treatment of minorities and remains completely opposed to reservations for Muslims. It might marginally increase their representation in the state, but unleash a process that further alienates them from politics.
Moreover, the 50% maximum for reservations established by the Supreme Court (1992) makes it impossible to go beyond this ceiling without a constitutional amendment. What is more, a parliamentary approval would be required to add religious groups to the list of groups eligible for reservations. On both counts it would be contentious and fraught with communally charged tensions and conflict. It makes better sense to get the backward Muslim groups on the official lists of backward classes and demand a guaranteed minimum than insist on a separate religious quota. There are two ways out of this impasse. First, acknowledge caste stratification among Muslims and identify the least advantaged on this basis. Second, identify disadvantaged groups on the basis of a mix of economic and social criteria. Admittedly, the first approach is more prudent and has lesser potential of alienating Hindus. Above all, it has found favour with governments willing to extend reservations to Muslims on the basis of caste, but not religion.
Kerala, Karnataka, Tamil Nadu follow the second approach of using a mix of economic and social criteria for classification, and have already implemented reservations on this basis for Muslims. It is important to remember that these states have not given reservations to all Muslims. But they have been more successful in giving proportionate public employment and government jobs to Muslims. Most significantly, they have got around the tricky issue of caste stratification and at the same time reached out directly to the disadvantaged by circumventing the Muslim elite. Two distinctive elements of the approach are the inclusion of an economic criterion and a provision for a guaranteed minimum for Muslims fixed by the state governments.
Both approaches emphasize the constructive role of the state and its responsibility for providing some manner of substantive equality for minorities, which is imperative for redressing intra-Muslim inequality and inter-group inequality among disadvantaged groups of different communities. But this will only be effective if supplemented with programmes that encourage and support educational progress and occupational mobility of the minorities. The key issue is the need for policy initiatives to redress disadvantage suffered by Muslims in the public sphere. Priority must be given to their inclusion in all schemes that are aimed at expanding opportunities for citizens: education, employment, and so forth. On this front the state needs to give a credible commitment, which it has not done adequately.
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 to broaden it beyond castes, taking into account contemporary realities of oppression in terms of other criteria of social stratification and difference. There are two basic deficiencies in the existing conception. First, reservation policies and the inclusiveness promoted by them draws sustenance from a representation of Indian society exclusively in terms of its caste-based social stratification. Second, the inequalities of gender and class get discounted, as do the disadvantages of belonging to a particular religious minority. In the contemporary conception of social justice, class differences are disregarded as also those social inequalities which happen to be incompatible with caste.
Originally, the concept of backwardness was formulated on the basis of specific experiences of institutionalized inequalities, and yet, unless it transcends that empirical context, it has limited utility. To the extent that Muslims are included in the backward class list the official notion of backwardness has been transcended, but it continues to be dominated by caste-based notions of backwardness. Yet, 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 secularization process going forward as a result of the provision of minority safeguards in the constitution.
1. Marc Galanter, Competing Equalities: Law and the Backward Classes in India, Oxford University Press, Delhi, 1984.
2. Laura Dudley Jenkins, Identity and Identification in India: Defining the Disadvantaged, Routledge Curzon, London, 2003.
3. A.R. Momin, The Empowerment of Muslims in India: Perspective, Context and Prerequisites, Institute of Objective Studies, New Delhi, 2004.
4. Marc Galanter, ‘Group Membership and Group Preferences in India’, in Law and Society in Modern India, Oxford University Press, New Delhi, second impression, 1994.
5. Report of the Backward Classes Commission, 1980; known as the Mandal Commission, pp. 60-1.
6. D.L. Sheth, ‘Reservations: No Provision for Communal Quotas’, Alpjan Quarterly: A Chronicle of Minorities, vol. IV, no.3 April-June 2004.
7. A.R. Momin, The Empowerment of Muslims in India, p. 63.
8. Syed Shahabuddin, ‘Reservation of Muslims: Constitutional and Socially Necessary’, Alpjan Quarterly: A Chronicle of Minorities, vol. IV, no.4, July-September 2004, p. 8.
9. Theodore Wright Jr., ‘A New Demand for Muslim Reservations in India’, Asian Survey, vol. 37, no. 9, September 1997.
10. See the series of articles in the Economic and Political Weekly, 15 November 2003, especially, Anwar Alam, ‘Democratization of Indian Muslims: Some Reflections’; Irfan Ahmad, ‘A Different Jihad: Dalit Muslims’ Challenge to Ashraf Hegemony’.