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1 Indian Constitution does not allow Reservation on religious grounds-A myth or reality By- S.

Farman Ahmad Naqvi, Advocate, Allahabad High Court In 1955, Kaka Kalelkar, Chairman of the First Central backward Class Commission, (First ever commission of its nature constituted under article 340 of Constitution of India, the second and the last such commission is Mandal Commission which submitted its report in 1980) in his note of dissent, expressed his views on the issue of Reservation in class I, II, III and IV Services of Government of India. It was primarily for the uplift of weaker sections of society. . Communalism and casteism are bound to destroy the unity of the nation and narrow down the aspiration of our people. The special concessions and privileges accorded to Hindu castes acted as a bait and bribe inciting Muslim and Christian Society to revert to caste and caste prejudices and the healthy social effect by Islam and Christianity were thus rendered null and void. (Para IV). In his note of dissent, Kaka clarifies that It is only when a community is proved to be working under a special handicap and is not allowed to freely function as a citizen that the state may intervene and make a special provision for the advancement of such under-privileged and handicapped communities or persons A general formula for helping all persons to whatever caste or community, they may belong, should be made. (Para viii)It is not enough to prove that one community is regarded inferior by another. The Christian may look down the Jews and the Jews may retaliate with the same feelings. The Brahmins may regard Banias as inferior and the Bania, in his turn, may regard the Brahmin as a mere social dependent. Such opinions and prejudices do not come in the way of the full growth of the backward communities either educationally or economically.. It is for them to make necessary efforts for their prosperity. They will naturally receive whatever helps is available to all citizens. (Para vii and viii). Criteria of backwardness other than caste It would have been better, if we would determine the criteria of backwardness on principles other than caste. (Para vii) According to him, caste test was repugnant to democracy and the objective to create a casteless and classless society by perpetuating and encouraging caste divisions. (Para viii). But 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 (the order) which 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: The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

2 a. 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 b. access to shops, public restaurants, hotels and places of public entertainment; or c. 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. 2. Nothing in this article shall prevent the State from making any special provision for women and children. 3. 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 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 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. Recently 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

3 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

4 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 the A.P. Govt. approached Supreme Court where the order of High Court was stayed 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. ******************