Defiling Constitution Defiling Constitution
Defiling Constitution
         Date: 20-Jul-2018
Protection of religious minorities and their interests is the bounden duty of any constitutional democracy but does such protection mean victimisation of SC/STs?
Shridhar Prabhu
 
Thanks to a good chunk of the media, even when Yogi Adityanath espouses the cause of protecting constitutional guarantees of Scheduled Castes and Tribes in one of the Universities in his State, it is bound to be termed as communal. Be that as it may, Adityanath’s pertinent intervention has brought to fore, the need for equitable implementation of affirmative actions. While the media may be left free to do what it is best at, it will be a great augury for the national polity if all political parties strive to build a national consensus on the impartial implementation of the constitutional mandate.
 

 
 
 
Alongside, there is also a pertinent need to evaluate the role of religious minorities vis a vis affirmative action. In view of the Constitution Bench judgment rendered in 1967 in the case of S Azeez Basha and Others Vs. Union of India (AIR 1968 SC 662) Aligarh Muslim University is not owned by religious minority institution but is a Central University, like any other university established under a Central Act. Therefore, it is now well settled that Aligarh Muslim University, like any other Central University, belongs to Bharat and NOT to any particular community.
 
Give and Take – Reciprocity in Reservations
 
The next question then would be the right to administer the University. What if, for the reasons best known to them, and in the name of administrative autonomy, religious minorities argue that they do not want to implement reservations in the institutions administered by them? Then, all right-thinking persons of the nation have to pose a germane question — Should such religious minorities be entitled to reservations in the educational institutions and government jobs?
 
What does Constitution say?
 
Historically, the Constitution has never recognised reservation benefits for the so-called religious minorities. Soon after the British Parliament passed the Government of India Act, 1935, there was a growing demand for ensuring social safeguard measures for weaker sections. Hence, even before the implementation of this Act, Government of India (Scheduled Caste) Order, 1936 came into being. The Schedule to this Order provided a comprehensive Province-wise list of Castes, which later came to be known as Scheduled Castes. The third clause of this Order specifically provided that “No Indian Christian shall be deemed to be a member of the Scheduled Caste”. Dr Bhimrao Ramji Ambedkar was a vocal proponent who ensured the inclusion of this clause because he strongly believed that there is no religious or legal sanctity for caste-based reservations to Christians or Muslims. Precisely, therefore, Constitution (Scheduled Castes) Order, 1950 under clause (1) of Article 341 of the Constitution of India, contained a specific clause, that, no person who professes a religion different from the Hindu shall be deemed to be a member of a Scheduled Caste. Sikh came to be inserted by an Act of the Parliament in 1956 and an amendment made in 1990, brought Buddhists into this fold. Now, the clause 3, as it exists, presently, reads thus:
 
“Those who are saying that Dalits are being discriminated against must be asked when will they raise the issue of reservation for Dalits in Aligarh Muslim University and Jamia Millia University? When BHU can provide reservation for Dalits and backward students, why not AMU?” — Yogi Adityanath (Uttar Pradesh Chief Minister)
 
 
 
“Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a Scheduled Caste.” Hence, the terminologies often employed by the media and intelligentsia and not to forget politicians– Dalit Christian or Dalit Muslim — is completely alien and anthemic to the scheme of the Constitution of India. In fact, the word “Dalit” does not find a place in the entire Constitution. What, then, is the legal logic for offering reservations to “Dalit Muslims” or “Dalit Christians”? Furthermore, if other than a Hindu no other person can be termed as a member of the Scheduled Caste, is it legally tenable to provide reservations to so-called “Dalit Muslims” or “Dalit Christians” under the OBC category? Bombay High Court in a recent PIL ruling has called upon Governments to remove reference to the word “Dalit”. The word “Dalit”, often used for political purposes, to confer legal legitimacy to “Dalit Muslims” and “Dalit Christians”, came to be popularised by our motivated intelligentsia with a calculated objective of harming Schedule Caste’s and Tribe’s Interests. UPA-1, in its effort to subvert the Constitution, appointed Ranganath Misra Commission with the term of reference of amending Constitution (Scheduled Castes) Order 1950 and to provide SC benefits to religious minorities. Living up to its mandate, the Commission recommended:
 
(a) Reservation of 10 per cent quota for Muslims and 5 per cent for other minorities in government jobs and seats in educational institutions.
 
(b) Reservation of 8.4 per cent out of existing OBC quota of 27 per cent for minorities
 
(c) SC reservation to “Dalit converts”
 
Since the Apex Court has long placed a ceiling on quota beyond 50 per cent, this special reservations to Muslims and other minorities had to be given by ousting the existing Scheduled Castes/Tribes/ OBCs. This was perhaps, the most heinous attack on the basic structure of the Constitution. Needless to state that Misra Commission’s report was wholeheartedly welcomed by Congress. It even united the pseudo adversaries - Indian Union Muslim League (IUML) and CPI(M). In fact, Kozhikode Congress of the CPI(M), passed a resolution for the implementation of the Misra report. Designs of Congress and its friends are predictable and understandable. However, It defies all logic to believe that a former Chief Justice of the Supreme Court of India chose to employ an unconstitutional terminology “Dalit converts”, which had no constitutional or legal basis. It is only BJP which stood by the Scheduled Castes and Tribes and started a nationwide campaign to safeguard their interests. It is, in fact, the present Hon’ble President of India Ramanath Kovind, who was then a prominent leader of BJP, spearheaded the campaign across the nation. But for this timely intervention, Congress and its friends would have surely ensured that Constitution is sabotaged.
 
Whether OBC Reservations for “Dalit Minorities” There is this specious argument advanced by intellectuals that OBC list is about class and not caste. But all Backward Classes Commissions – right from Kalelkar to Mandal – have conclusively established that “Class”, in the Indian context, is nothing but “Caste”. When caste is the sole basis for reservations, the Clerics and Pastors who advocate about the universal brotherhood of their religions must come to explain whether there is a caste system in their respective religions. And if one follows caste system, such a person can be termed as the one belonging to their religion at all? Same is the case with Christians. In fact, during 2003 ad limina visits of the Indian Bishops, Pope John Paul II severely criticised the caste system in the Catholic Church and specifically said there is no room for caste in Christianity. There is no religious sanction, how can Indian Christians be categorised into caste? And if a person, even after conversion professes caste – a Hindu phenomenon, can s/he can be termed as Muslim or Christian at all? Central List of OBCs with 27 per cent has many Muslim castes. Delhi OBC List has about 54 castes in its state list out of which at least 19 are Muslim. Nearly 50 Muslim “castes” in the state OBC list in Gujarat. Likewise, in Madhya Pradesh, 37 Muslim “castes” are included in the OBC list. Karnataka has sub categorised OBC List and is providing an exclusive 4 per cent quota for all Muslims. Apart from this, Muslims castes are entitled to 4 per cent reservations under Category I and 15 per cent reservation in IIA. Likewise, Dalit Christians too have a quota. Kerala Government is providing 12 per cent reservations to Muslims by slotting them in OBC Category. In Andhra Pradesh, The Backward Class Category is subdivided into Group A (7 per cent), Group B (10 per cent), Group C (1 per cent) and Group D (7 per cent).
 

Reservations provided to Muslims and Christians ‘Castes’ in various States

Madhya Pradesh  37 Muslim “castes” are is state’s OBC list
 Gujarat  50 Muslim “castes” in the state’s OBC list
 Delhi  19 Muslim “castes” in the state’s OBC list
Karnataka Muslims castes are entitled to 4 per cent reservations under Category I and 15 per cent reservation in IIA
Kerala 12 per cent reservations to Muslims by slotting them in OBC Category
Andhra Pradesh Muslim “castes” are included in Group A, B and D. Special “Group C” exclusively carved out for SC converts to Christianity.
Telangana 12 per cent Exclusive reservations to Muslims which includes many ‘Castes’
 
A few Muslim “castes” are included in Group A, B and D. Moreover, a special “Group C” is exclusively carved out for SC converts to Christianity. To compete with AP, in April 2017, Telangana raised the Muslim exclusive reservations to 12 per cent. Thus, it has become customary to provide for reservations to “castes” within minorities without first analysing its constitutional or religious permissibility! Ousting Tribal on ST Reserved Constituencies There is a systematic effort to sabotage electoral prospects of Tribal. Blocking one such vile effort by a “Dalit” Christian of Gadchiroli District of Maharashtra, a Nagpur Bench of Bombay High Court recently held that reservation benefits cannot be extended to a person of Scheduled Tribe if such person renounced her erstwhile customs and embraced Islam or Christianity. Delivering the judgment in Manoj Sidam’s case, on behalf of the Division Bench, Justice Z.A.Haq, citing dozens of Apex Court judgments, held that unless it is shown conclusively that one continues to follow rituals of Scheduled Tribe, no consequential benefits can be extended. Should this ratio be not logically extended to OBC categories too? In fact, Apex Court in the KP Manu’s case (AIR 2015 SC 1402), very clearly held that a Christian or Muslim from several generations can get SC reservations benefits only if s/he conclusively proves that s/he has returned to Hindu fold and has been embraced back by the community. This judgment emphatically reaffirms the intent of philosophy of the Constitution makers. Way Forward The National Commission for Backward Classes (NCBC) had recommended it in 2011 for sub-categorisation of OBC List. In terms of these recommendations, in October 2017, President Ramanth Kovind notified a five-member Commission under Article 340 of the Constitution. This Committee has a three-point mandate: 
  1. To examine the “extent of inequitable distribution of benefits of reservation” among various castes and communities that come under the Central OBC list.
  2. To work out the mechanism, criteria, and parameters for the actual sub-categorisation. The actual OBC reservation will continue to be 27 per cent and within this, the committee will have to do the re-arranging.
  3. Bringing order to the Central list of OBCs by removing any repetitions


This Committee should seriously consider the rationalisation of the OBC reservation structure and inquire into the anomalies perpetrated over decades. There is no denial of the fact that protection of religious minorities and their interests is the bounden duty of any constitutional democracy. But whether such protection means victimisation of SC/STs? Judicial pronouncements have been crystal clear and consistent in negating this notion. But when or whether at all our polity will awake from its pretentious slumber?
The Ranganath Misra Commission Recommendations
(a) Reservation of 10 per cent quota for Muslims and 5 per cent for other minorities in government jobs and seats in educational institutions.
(b) Reservation of 8.4 per cent out of existing OBC quota of 27 per cent for minorities
(c) SC reservation to “Dalit converts”
 
 (The writer is a Bengaluru based Lawyer and Managing partner of Navayana Law Offices)