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Indian Constitution does not allow reservation on

religious grounds - A myth or reality



2 June 2012 - 4:17pm
By S. Farman Ahmad Naqvi,
Our polity allowed religious based reservation by using Constitutional provision i.e.
article 341 which permits to specify castes to be added in a LIST by the president,
by just issuing a notification. One will be surprised to know that when this
notification was issued in 1950 it allowed religious based reservation in total
violation of Constitutional provisions namely article 15.
The notification called THE CONSTITUTIONAL (SCHEDULED CASTES) ORDER, 1950
says in para 3 regarding allowing reservation to only Hindus and no one, in the
following words;
4 (3). Notwithstanding anything contained in paragraph 2, no person who
professes a religion different from the Hindu 5 [the Sikh or the Buddhist] religion
shall be deemed to be a member of a Scheduled Caste].
The presidential Order 1950 renders the Dalit Christians and Dalit Muslims ineligible
for enjoying the benefits of affirmative action of Government. Before Proceeding it
is appropriate to place article 15 of Constitution of India here in below:
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. No citizen shall, on ground only of religion, race, caste, sex, place of birth or any
of them, be subject to any disability, liability, restriction or condition with regard to
a. access to shops, public restaurants, hotels and places of public entertainment; or
b. the use of wells, tanks, bathing Ghats, roads and places of public resort
maintained whole or partly out of State funds or dedicated to the use of general
public.
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) or 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.
Although Article 15 of the Constitution says that there shall be prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth, except from
making some provision for advancement of any educationally and socially backward
classes of citizen as well for SC and ST so far that provision relates to their
admission in educational institutions.
The Presidential Order 1950 states that the criterion to define the Scheduled Caste,
which reads: Not withstanding anything contained in paragraph 2, no person who
professes a religion different from Hindu, shall be deemed to be a member of a
Scheduled Caste. So the religion was used as a criterion to define, who shall be
Scheduled Caste. On the basis of that criterion all other people professing Islam,
Christianity and other were left out. Although in 1956 and 1990 the third paragraph
of the Presidential Order 1950 was amended by the Parliament to extend the
benefits to the Dalit Sikhs and the Dalits Buddhists along with the Dalit Hindus.
The serious question arises here is that whether this presidential Order of 1950 is in
conflict of Part III of Constitution of India which envisages equality to all citizens of
India in article 14 and 16 in all spheres of life or not?
Article 14 of Constitution of India says, the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of
India. Article 16 of Constitution of India says that there shall be equality of
opportunity for all citizens in matters relating to employment or appointment to any
office under the State. Although article 15 of Constitution of India provides for 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.
Numerous studies most prominently and recently the Sachar Committee report,
have pointed out, Muslims are among the most economically, educationally and
socially backward sections of Indian society. Undoubtedly, the report is immensely
useful for understanding the magnitude of this problem, as are many of the
suggestions that it provides for ameliorating it.
The Govt. of India had also constituted National Commission for Religious and
Linguistic Minorities which was also called as Ranganath Misra Commission
constituted on 29 October 2004 to look into various issues related to Linguistic and
Religious minorities in India. It was chaired by former Chief Justice of India Justice
Ranganath Misra. The commission submitted its report to the Government on 21
May 2007.
Initially, the commission was entrusted with the following terms of reference.
(a) To suggest criteria for identification of socially and economically backward
sections among religious and linguistic minorities; (b) To recommend measures for
welfare of socially and economically backward sections among religious and
linguistic minorities, including reservation in education and government
employment; and (c) To suggest the necessary constitutional, legal and
administrative modalities required for the implementation of its recommendations.
After nearly five months of its work the Commissions Terms of Reference were
modified so as to add the following to its original Terms of Reference.
(d) To give its recommendations on the issues raised in WPs filed in the Supreme
Court of India and in certain High Courts relating to Para 3 of the Constitution
(Scheduled Castes) Order 1950 in the context of ceiling of 50 percent on
reservations as also the modalities of inclusion in the list of Scheduled Castes.
Following are the salient features of recommendations of Ranganath Misra
Commission:
15% of jobs in government services and seats in educational institutions for
minorities
reserves 8.4% out of existing OBC quota of 27% for minorities
SC reservation to Dalit converts.
Para 3 of the Constitution (Scheduled Castes) Order 1950 which originally
restricted the Scheduled Caste only to Hindus and later opened it to Sikhs and
Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and
Parsis, etc. should be wholly deleted by appropriate action so as to completely
de-link Scheduled Caste status from religion and make the Scheduled Castes net
fully religion-neutral like that of the Scheduled Tribes.
Although an entire religious group had still not been granted reservation by the
1950 order but backwardness was considered a qualification for granting
reservation to a religious group by this order. Applying the same analogy other
religious groups can be identified and granted reservation on the basis of their
backwardness. As mentioned above Muslims backwardness had already been
identified and it was found that a substantial chunk of Muslims is living below
poverty lines. Then where is the impediment to provide adequate representation to
them in public employment in view of article 15 (4) of Constitution. By not doing so
discrimination is extended to the left out religious groups.
Till today twelve States Government and Union Territories have recommended to
Union of India for granting the SC status to these people. In the year 2000, Bihar
State Assembly passed resolution for granting SC status to Dalit Christians and
Dalit Muslims; in the year 2006 Uttar Pradesh State Assembly passed resolution for
the same; in the year 2009 Andhra Pradesh State Government had passed
resolution in its assembly for granting the SC status to Dailt Christians and Dalit
Muslims. Andhra Govt. granting 4 percent reservation to Muslims was negated by
its High Court on technical grounds. Against it, the A.P. Govt. approached Supreme
Court where the order of High Court was stayed and matter was referred to a
constitution Bench of Seven Judges and the reservation of Muslims in A.P. was
allowed to be continued during the matter is pending there.
Now the focus has shifted from political space to economic and educational
entitlement, but at the core remains the grievance of injustice. If reservations are
good for virtually everyone else, why do they become such a terrible idea when it
comes to Muslims? True or false, the Constitution does not permit reservations for
religious groups; but this is fact that article 15 envisages reservations for women
and reservation to women is provided taking advantage of the said constitutional
provision. If State can take advantage of the Constitution to accommodate women,
Dalit Hindus, Buddhists and Sikhs, why not educationally and socially backward
Muslims taking advantage of article 15 (4) of Constitution of India?
On the other hand if the argument is that religious reservation is not permissible
then how to reconcile with 1950 Presidential order which provides reservation to
the persons who professes Hindu, Sikh or the Buddhist religion? We can hide the
truth behind millions of words loaded with heavy reasons, but the simple truth is
that reservation on religious grounds was allowed indirectly taking cue from the
words of Article 341 of Constitution of India.
(The author is lawyer at Allahabad High Court)

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