Friday, December 25, 2009

The 15% Solution

Reservations for Minorities

The 15% Solution

Rajeev Dhavan

Like a Christmas present to expected-to-be-grateful minorities, the Ranganathan Mishra National Commission on Religion and Linguistic Minorities emerged from forgotten shelves. Envisaged on 29 October 2004, Mishra Commission was constituted on 21 March 2005 with Mishra as chair, Tahir Mehmood, Anil Wilson, and Mohinder Singh as members and Asha Das as Secretary. The Report arrived on 10 May 2007 and was tabled in Parliament on 21 December 2009. Most of the Report recommends the usual remedies of coordination, implementation and good will. Since such Reports invariably recommend the prevalent diseases of ‘Chairmanitus’ and ‘Committiatus’, these are handsomely rewarded in the Mishra report in the form of a Parliamentary Committee, National Committee, similar bodies in the States, National Coordination Committee, State Minority Commissions, Minority Welfare Departments and Minority Welfare Committees in all districts (pr.16.4.5). This is in addition to the existing statutory National Minority Commission (1993) and National Commission for Educational Institutions (1983). Rules and procedures were recommended for the National Minorities Development and Finance Corporation and the Maulana Azad Education Foundation to uplift the minorities economically, with, possibly, the creamy layer licking off the cream (pr.16.4.5). In all this, the report is like countless reports which shelve dust; and, if implemented create sinecure posts for absentee members whose offices suffer paperonic decay. All goody-goody programmes are not for serious implementation.

The basic approach of the National Commission is to exorcise affirmative action programmes of Hindu notions of caste. The Commission was “convinced that any religion based discrimination in selecting particular castes for affirmative action will conflict with the letter and spirit of the constitutional provisions”. But this was exactly the view of the minority judges in the famous Mandal case (1992). The Commission notes that ‘castes’ exist in all religions to ask why affirmative action is restricted only to Hindus. It suggests that the Hindu monopoly on affirmative action be broken in favour a secular estimate of similarity placed castes in other religions. The Mishra Commission wants the Scheduled Caste (1950) and Tribes (1951) Orders to be amended accordingly. What the Supreme Court failed to do in the Mandal case (1992) is now attempted by the Mishra report (2009).

Mandal had spoken of the possibility of Muslim and Christian reservations (see (1992) Supp. 3 SCC 217 prs. 757, 761, 769, 777, 778, 782 and 788). But it is precisely the attempt to include Muslim as ‘Other Backward Classes’ (OBC) which failed to pass muster before two 5 judge benches of the Andhra High Court. A 7 judge bench decision is awaited. The problem has been that the High Court has applied much more rigorous tests of backwardness to Muslim disadvantaged than their Hindu counterparts. Most OBCs are unquestioningly appointed by way of largesse and patronage. Both the Mandal (1992) and the Nagaraj decisions (2006) want rigour as did initial decision in the OBC case (2007). Eventually, a lax approach seems to have continued. My own experience of arguing the Andhra Reservation cases for the Muslims is that Muslim demands for reservations are treated with greater strictness than Hindu demands.

But the Mishra Commission’s approach may defy acceptance. We know that the purpose of reservations on public posts is to ensure that those not adequately represented in the services can share the power of the State [see Mandal decision (prs. 694, 788)]. The Mishra Report wrongly invokes the “full sanction of the Article 16(4) of the Constitution” (pr.16.2.16) for 15% reservation for government jobs for Muslim, Christian and other minorities is on the assumption that all minorities must necessarily be backward (pr.16.2.17). But all Muslims, Christians and others are not backward – only some groups amongst them.

What is being insidiously resurrected is ‘communal representation’ under the rubric of ‘under-representation’. Communal electoral quotas in Parliament and the State assemblies are not being suggested. The 15% solution applies to empowerment in bureaucracy on the basis of in adequacy of representation. There are many communities and faiths which though notionally backward, are inadequately represented in the services. Emphasis on inadequacy of representation on the assumption of backwardness changes the ball game completely to encourage communally inspired demands for all. Such communal approaches were specifically excluded from the Constitution and smack of a barely disguised communalism. It is not clear whether this new quota will be an OBC quota or SC or ST quota? Or whether minority quotas will be written into these quotas or added to them? If added, the overall quotas will become 64%; if assimilated, they will cause heart burning in the OBC, SC and ST who will have their quota reduced from 50 percent to 35%. Muslims and Christians cannot generally be admitted to reservation. Reservations have to be of backward groups amongst them.

The 15% solution is also suggested for education. The St. Stephens case (1992) indicated a 50% cap on preferentially recruited minority students in minority aided institutions. In TMA Pai (2002) this cap was retained for these aided institutions but subject to the further limitation of getting minority students only from within the State where the institution was geographically located. Thus, a nationally renowned St. Stephen’s could recruit preferred minority students almost exclusively from Delhi! The Mishra Commission comes up with a 15% solution so that all “non-minority educational institutions should have ear-marked” 15% seats for minorities (pr.16.2.7). This is tit (15%) for tat (loss of 50% out of 100). It has no plausible constitutional basis and will make a further mess out of the existing jungle. Even after the 93rd amendment protecting the minority institutional rights in this way is not permissible. The 15% is to be divided into 10% for Muslims and 5% for other minorities to pure communal quotas in all non-minority institutions is contrary to both secularism and settled principles of affirmative action. The Mishra Commission assumes that the National Education Policy of 1986 identified Muslims and Neo-Buddhists as most educationally backward (pr.16.2.2.). That was 23 years ago without recommending a religion based quota.

However, the Mishra Commission rightly insists that SC and ST quotas must not only extend to Hindus but all similarly placed castes or groups in minority communities. Equally religious conversion does not change caste standing. The SC order (1950) was consciously designed for Hindus and later extended to Buddhists and Sikhs. The Commission is right. Castes are part of the Muslim social fabric. It should extend to Muslims and other minorities so that SC and ST lists become ‘religion’ free. Here Asha Das’s dissent seems to be misplaced. Such a religion free approach should exist for SC, ST and OBC. Equally, the Supreme Court’s decision in Soosai (1997) making it more difficult for converts from Hinduism to retain reserved status merits examination in the light of the Mishra report.

Proliferating language is important. A language dies every day. But for Pakistan, Urdu would have slowly died as a living language. A better prognosis was needed than implementing existing constitutional dispensations and the three language formula.

Without actually saying so (and suggesting the contrary), the Mishra report has moved away from rigorous ‘backwardness’ standard into a clumsy communalism. Lifting minority communities require a much more pointed and focused policy. The Mishra Report is a political report – a testament to political parties seeking communal vote banks by declamation rather than planned implementation. Beware of ‘wisemen’ bringing gifts.

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