Indian
Constitution does not allow reservation on religious grounds – A myth or
reality
June 6, 2012 : Catholic Christians Secular Forum
India, June 2,
2012: 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]”.
“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.
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 Commission’s 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.
• 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.




