Growth of Entire Nation Requires To Empower Indian Backward Muslim Through Reservation

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Page 1 Monday, October 24, 2022

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22 ALJ (2014-15) 291
Growth of Entire Nation Requires to Empower Indian Backward Muslim

through Reservation : an Appraisal
GROWTH OF ENTIRE NATION REQUIRES TO EMPOWER INDIAN BACKWARD MUSLIM

THROUGH RESERVATION : AN APPRAISAL
by
Zafar Ahmad Khan*
INTRODUCTION:
In order to enhance the socio-economic status of the socially and economically
backward amongst the religious and linguistic minorities and to suggest criteria for
identifying them and propose measures for their mainstreaming, it is important to
know who are the ‘linguistic minorities”? Minorities are generally understood as a
group of people constituting less than half the population of a given society, who are
differentiated by religion or language and think of themselves as a distinct group. The
term “Linguistic Minorities” as such has not been defined in the Constitution or any
other law. The term ‘Minority’ has been defined in Section 2 of the National
Commission for Minorities Act with reference to the religious minorities only.
Page: 292
Religion depicts the main socio-cultural characteristics of a person. Different

communities and people perceive religion differently. Some people have an
established set of beliefs, rituals and traditional practices and worship one Supreme
Being or deity that may be their own caste/tribe or village deity. Other people worship
a number of Gods and Goddesses while some practice and perceive religion in their
own way and belief others prefer to be atheist. India is a unique country where some
religions like Hinduism, Buddhism, Jainism and Sikhism have originated and other
religions of foreign origin flourished bringing ‘unity in diversity’.
The word ‘minority religion’ has not been defined anywhere in the Constitution but
it finds mention in various Articles in Part III of the Constitution.
The U.N. Sub-Commission on Prevention of Discrimination and Protection of
Minorities has defined ‘minority’ as one including only those non-dominant groups in a
population which possess and wish to preserve stable ethnic, religious or linguistic
traditions or characteristics markedly different from those of the population.
MEANING OF MINORITY:
A minority is a sociological category within a demographic. Rather than a relational
“social group”, as the term would indicate, the term refers to a category that is
differentiated and defined by the social majority, that is, those who hold the majority
of positions of social power in a society. The differentiation can be based on one or
more observable human characteristics, including, for example, ethnicity, race,
gender, wealth or sexual orientation. Usage of the term is applied to various situations
and civilizations within history, despite its popular mis-association with a numerical,
statistical minority. In the social sciences, the term “minority” is used to refer to
categories of persons who hold few positions of social power.1
However, national minority can be theoretically (not legally) defined as a group of
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people within a given national state:
Page: 293
1. which is numerically smaller than the rest of population of the state or a part of
the state
2. which is not in a dominant position
3. which has culture, language, religion, race etc. distinct from that of the majority
of the population
4. whose members have a will to preserve their specificity
5. whose members are citizens of the state where they have the status of a
minority.
6. which have a long-term presence on the territory where it has lived.2
MINORITY UNDER INDIAN CONSTITUTION:
“The Constitution (103rd Amendment) Bill, 2004 to grant constitutional status to
the National Commission for Minorities envisages a change in the way minorities are
specified. The Cabinet has reportedly approved a proposal (May 2007) to define
minorities State-wise in line with several Supreme Court judgments, most notably that
in T.M.A. Pai. For the purpose of this legislation, minority will be specified as such in
relation to a particular State/Union Territory by a presidential notification issued after
consultation with the State Government; this will be in addition to the five minorities
(Muslims, Christians, Sikhs, Buddhists, and Parsis) referred to in the National
Comission for Minorities Act, 1992. The new approach is not consistent with the
understanding developed in the Constituent Assembly on the protection of minorities
and the constitutional compact between the State and minority groups.
Although the Constitution does not define a minority or provide details relating to
the geographical and numerical specification of the concept, it is clear that the
constitutional scheme envisages this to be determined at the national level. Periodic
judicial interventions and categorization has had major repercussions. Over the years,
judicial pronouncements have sought to give a restricted meaning to minority rights
by limiting them to education and defining minorities at the State level in terms
Page: 294
of protection under Article 30 which provides religious minorities the right to set up
educational institutions of their choice. The legitimating of a restrictive conception of
minority rights can also be noticed, in this context, in the Central Government's
proposal to adopt a State-specific notion of minorities.3
CONSTITUTIONAL GUARANTEES TO MINORITIES:

The Constitution provides two sets of rights of minorities which can be placed in
‘common domain’ and ‘separate domain’. The rights which fall in the ‘common domain’
are those which are applicable to all the citizens of our country. The rights which fall in
the ‘separate domain’ are those which are applicable to the minorities only and these
are reserved to protect their identity. The distinction between ‘common domain’ and
‘separate domain’ and their combination have been well kept and protected in the
Constitution. The Preamble to the Constitution declares the State to be ‘Secular’ and
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this is a special relevance for the Religious Minorities. Equally relevant for them,
especially, is the declaration of the Constitution in its Preamble that all citizens of
India are to be secured ‘liberty of thought, expression, belief, faith and worship and
‘equality of status and of opportunity.’4
The Constitution has made provisions for the Fundamental Rights in Part III, which
the State has to comply with and these are also judicially enforceable. There is another
set of non-justifiable rights stated in Part IV, which are connected with social and
economic rights of the people. These rights are known as ‘Directive Principles of State
Policy’, which legally are not binding upon the State, but are “fundamental in the
governance of the country and it shall be the duty of the State to apply these
principles in making laws”.5 Part IV of the Constitution of India, containing non-
justiciable Directive Principles of State Policy, includes the following provisions having
significant implications for the Minorities:—
i. obligation of the State ‘to endeavor to eliminate inequalities in status, facilities
and opportunities’ amongst individuals and groups of people residing in different
areas or engaged in different vocations;6
Page: 295
ii. obligation of State ‘to promote with special care’ the educational and economic
interests of ‘the weaker sections of the people’ (besides Scheduled Castes and
Scheduled Tribes);7 and
Part IVA of the Constitution, relating to Fundamental Duties as provided in Article
51A applies in full to all citizens, including those belonging to Minorities. Article 51A
which is of special relevance for the Minorities stipulates as under:—
i. citizens' duty to promote harmony and the spirit of common brotherhood amongst
all the people of India ‘transcending religious, linguistic and regional or sectional
diversities; and
ii. citizens' duty to value and preserve the rich heritage of our composite culture.’8
The Constitution has provided a definite space for both the ‘domains’ i.e.
‘common’ as well as ‘separate’. In Part III of the Constitution, which deals with the
Fundamental Rights is divided into two parts viz. (a) the rights which fall in the
‘common domain’ and (b) the rights which go to the ‘separate domain’. In the
‘common domain’, the following fundamental rights and freedoms are covered:
i. people's right to ‘equality before the law’ and ‘equal protection of the laws’;9
ii. prohibition of discrimination against citizens on grounds of religion, race,
caste, sex or place of birth;10
iii. authority of State to make ‘any special provision for the advancement of any
socially and educationally backward classes of citizens’ (besides the Scheduled
Castes and Scheduled Tribes);11
iv. citizens' right to ‘equality of opportunity’ in matters relating to employment or
appointment to any office under the State - and prohibition in this regard of
discrimination on grounds of religion, race, caste, sex or place of birth;12
Page: 296
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v. authority of State to make ‘any provision for the reservation of appointments

or posts in favour of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under the State;13
vi. people's freedom of conscience and right to freely profess, practice and
propagate religion - subject to public order, morality and other Fundamental
Rights;14
vii. right of ‘every religious denomination or any section thereof-subject to public
order, morality and health - to establish and maintain institutions for religious
and charitable purposes, ‘manage its own affairs in matters of religion’, and
own and acquire movable immovable property and administer it ‘in
accordance with law’;15
viii. prohibition against compelling any person to pay taxes for promotion of any
particular religion’;16
ix. people's ‘freedom as to attendance at religious instruction or religious worship
in educational institutions’ wholly maintained, recognized, or aided by the
State.17
The Minority Rights provided in the Constitution which fall in the category of
‘Separate Domain’ are as under:—
i. right of ‘any section of the citizens’ to ‘conserve’ its ‘distinct language, script or
culture’;18
ii. restriction on denial of admission to any citizen, to any educational institution
maintained or aided by the State, ‘on grounds only of religion, race, caste,
language or any of them’;19
iii. right of all Religious and Linguistic Minorities to establish and administer
educational institutions of their choice;20
iv. freedom of Minority-managed educational institutions from discrimination in the
matter of receiving aid from the State;21
v. special provision relating to the language spoken by a section of the population of
any State;22
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vi. provision for facilities for instaiction in mother-tongue at primary stage;23

vii. provision for a Special Officer for Linguistic Minorities and his duties;24 and
viii. Sikh community's right of ‘wearing and carrying of kirpans;25
SOCIO-ECONOMIC CHARACTERISTICS OF RELIGIOUS MINORITIES:
Indian social structure is characterized by unity as well as diversity. It has had
numerous groups of immigrants from different parts of Asia and Europe. All the great
religions of the world are represented in this country. People speak different
languages. Diversity is seen in the patterns of rural-urban settlements, community
life, forms of land tenure, and agricultural operations and in the mode of living. Some
eke livelihood out of hills and forests, others out of land and agriculture and yet a few
depend upon marine resources. The fusion of varying religions, the caste system and
peoples occupational structure are the salient features of Indian society. Inter-caste
relations at the village level are bound by economic ties, be it peasant, the leather
worker, carpenter, blacksmith or the servicing communities.
The demography of minority communities, their rural-urban distribution, sex
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composition, literacy and educational status, marital status and livelihood patterns do
indicate the lifestyle of the people. Pattern of landholdings, sources of income and
health status narrate their quality of life. Today, socio-economic changes are taking
place rapidly in the country affecting the majority as well minority communities, due
to diversification of economic pursuits, urbanisation, westernisation of education, inter
-caste marriages etc.
According to 2001 census, out of country's total population of 10,286.07 lakhs, the
religious minorities are 2,010.29 lakhs, which is approximately 18 percent. A large
proportion of them belong to Muslims (13.4 percent), followed by Christians (2.3
percent), Sikhs
Page: 298
(1.9 percent), Buddhists (0.8 percent) and Zoroastrians (Parsis) (0.0069 percent).
NATIONAL COMMISSION FOR MINORITIES:

The setting up of Minorities Commission was envisaged in the Ministry of Home
Affairs Resolution dated 12.01.1978 which specifically mentioned that, “despite the
safeguards provided in the Constitution and the laws in force, there persists among
the Minorities a feeling of inequality and discrimination. In order to preserve secular
traditions and to promote National Integration the Government of India attaches the
highest importance to the enforcement of the safeguards provided for the Minorities
and is of the firm view that effective institutional arrangements are urgently required
for the enforcement and implementation of all the safeguards provided for the
Minorities in the Constitution, in the Central and State Laws and in the government
policies and administrative schemes enunciated from time to time. Some time in 1984
the Minorities Commission was detached from Ministry of Home Affairs and placed
under the newly created Ministry of Welfare.26
With the enactment of the National Commission for Minorities Act, 1992, the
Minorities Commission became a statutory body and renamed as National Commission
for Minorities.
The first Statutory National Commission was set up on 17th May 1993. Vide a
Gazette notification issued on 23rd October 1993 by Ministry of Welfare, Government
of India, five religious communities viz; the Muslims, Christians, Sikhs, Buddhists and
Zoroastrians (Parsis) were notified as minority communities. As per the 2001 Census,
these five religious minority communities constitute 18.42% of the country's
population.
As per Section 9(1) of the National Commission for Minorities At, 1992, the
Commission is required to perform following functions:
(a) evaluation of the progress of the development of minorities under the Union and
States;
Page: 299
(b) monitoring of the working of the safeguards for minorities provided in the
Constitution and in laws enacted by Parliament and the State Legislatures;
(c) making recommendations for the effective implementation of safeguards for the
protection of the interests of minorities by the Central Government or the State
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Governments;
(d) looking into specific complaints regarding deprivation of rights and safeguards
of minorities and taking up such matters with the appropriate authorities;
(e) getting studies to be undertaken into the problems arising out of any
discrimination against minorities and recommending measures for their removal;
(f) conducting studies, research and analysis on the issues relating to socio-
economic and educational development of minorities;
(g) suggesting appropriate measures in respect of any minority to be undertaken by
the Central Government or the State Governments;
(h) making periodical or special reports to the Central Government or any matter
pertaining to minorities and in particular the difficulties confronted by them; and
(i) any other matter, which may be referred to it by the Central Government.
Section 2(c) of NCM Act, 1992 stipulates that ‘Minority’ for the purposes of the Act,
means a community notified as such by the Central Government. Therefore, all the
functions of the Commission as laid down in Section 9(1) of the Act are related to the
five notified communities.
JUSTICE RANGANA TH MISHRA COMMISSION RECOMMENDATIONS:
Criteria for identifying socially and economically backward classes among the
religious and linguistic minorities
Page: 300
The commission recommend that in the matter criteria for identifying backward
classes there should be absolutely no discrimination whatsoever between the majority
community and the minorities; and, therefore, the criteria now applied for this purpose
to the majority community whatever that criteria may be - must be unreservedly
applied also to all the minorities.
The commission recommend that all those classes, sections and groups among the
minorities should be treated as backward whose counterparts in the majority
community are regarded as backward under the present scheme of things.
The commission recommend that all those social and vocational groups among the
minorities who but for their religious identity would have been covered by the present
net of Scheduled Castes should be unquestionably treated as socially backward,
irrespective of whether the religion of those other communities recognises the caste
system or not.
The commission also recommend that those groups among the minorities whose
counterparts in the majority community are at present covered by the net of
Scheduled Tribes should also be included in that net; and also, more specifically,
members of the minority communities living in any Tribal Area from pre -
independence days should be so included irrespective of their ethnic characteristics.
CONCLUDING REMARKS:
The Government have carefully considered Rangnath Mishra Commission
recommendation and it has been decided to carve out a sub-quota of 4.5% for
minorities, as defined under Section 2(c) of the National Commission for Minorities
Act, 1992, from within the 27% reservation for OBCs as notified by the aforesaid O.M.
The castes/communities of the said minorities which are included in the Central list of
OBCs, notified state-wise from time to time by the Ministry of Social Justice and
Empowerment, shall be covered by the said sub-quota.
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Page: 301
The Government of India had set up the National Commission for Religious and
Linguistic Minorities (Ranganath Mishra Commission) to suggest criteria for the
identification of the socially and economically backward sections amongst Religious
and Linguistic Minorities and to recommend measures for their welfare, including
reservation in Government employment. The Commission submitted its report to the
Government on 10th May, 2007, wherein it had, inter-alia, recommended creation of a
sub-quota for minorities from within the reservation of 27% available to OBCs, in
Government employment.
The Central Government ordered 4.5% Reservation for Minorities in jobs and
education. We welcome this moves!. However, we have two major concerns which
need to be fixed:
1. Reservation given is far too less
2. Inadequacy of legalities making its sustainability doubtful
We are hopeful Government will take necessary action on above.
This new quota for Minorities will be carved from an existing quota of 27% reserved
for Other Backward Classes (OBC). There was complete unanimity in the Cabinet over
the decision. The decision is based on the recommendation of the National
Commission for Religious and Linguistic Minorities. “The caste and communities of the
said minorities which are included in the Central list of OBCs notified from time to time
by the ministry of social justice and empowerment shall be covered by the said sub-
quota,”.
Muslims comprises over 13% of India's billion-strong population, but are under-
represented in government jobs, bureaucracy and the police. A third of the population
also lives below the poverty line. They are week in every strand of the nation's fabric.
This exclusion extends to all areas, from lower bureaucracy to the judiciary to elite civil
services. Muslims' share in the IAS, IPS and IFS is 2.2, 3.0 and 1.6 percent
respectively. In armed forces, their proportion is said to be just 2 percent. According
to surveys 41.9% of Muslims in rural areas have an annual income less than 10,000
Rupees.
Page: 302
Facing political and economic marginalization and security concerns on the one
hand and being perpetually under the scanner of security agencies as usual suspects,
they find comfort in numbers and in their ghettoes and slums in urban India. Poverty
in small town India and rural areas is even worse. Little of government benefits and
programs, targeting the vast majority of economically struggling communities trickle
down to them.
In 2006, Justice Sachar submitted findings and possible solutions to address the
dangerous deprivation and dispossession of the country's largest minority. Now,
Government has acted on the urgent recommendations partially with five year delay.
Real and bold action to check the marginalization and alienation of the community
was overdue. Reservations or affirmative action, call it what you will, there is a
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desperate need to stop the free fall of an entire community. While the caste-based
reservations for the communities long discriminated against because of their birth
make sense, there must be a way to help the large deprived communities such as
Muslims. The quota in education and jobs - as little as 4.5 percent - may not be the be
-all and end-all magic wand to end all of Muslims' woes but it's a start and better than
doing nothing.
It is proved that affirmative action actually works. It has already transformed
hundreds of millions of lives in India since Independence. Pre-Mandal, who could have
imagined a Dalit woman heading the country's most populous and important state? So
the quota could make a life-changing difference to Muslims as well. Besides, it's in the
national interest to lift Muslims out of the hole they find themselves in. India cannot
aspire for global leadership and glory while a huge chunk of its population, around 200
million, remains out in the cold.
Clause (3) of Constitution (Schedule Caste) order 1950 restricts benefits of
reservation under Article 341 of Constitution only to Hindus, Sikhs and Neo Buddhists;
this is discriminatory against Muslims and Christian Dalits. Irony is that while Hindu,
Sikh and Buddhist scheduled castes were entitled for benefits under the
Page: 303
reservation policy, Muslim and Christian dalits carrying on the same traditional, caste
occupations such as Washermen, Sweepers (Lai Begis), Nat, Butchers, Weavers were
denied these benefits just because they follow Islam or Christianity.
Ranganath Misra Commission, National Commission for Schedule Caste and

National Commission for Minorities have already recommended abolition of this
discriminatory clause. Therefore this clause should be abrogated by Parliamentary
amendment. The Centre should have consideration the recommendation made by the
UP assembly though its resolution adopted during the Mulayam Singh Government for
the deletion of the Clause (3) of the Constitution to enable the Muslim and Christian
dalits to be treated at par with their Hindu counterparts.
Page: 304
———
* Research Officer, Dr. Ambedkar Chair of Legal Studies & Research, Deptt. of Law, AMU, Aligarh.
1
www.wikipedia.com.
2 Daniel Smihula (2009). “Definition of national minorities in international law”, in Journal of US-China Public
Administration, Vol. 6, No. 5, October 2009, pp. 45-51.
3
Today's edition of the Hindu features an article by Professor Zoya Hasan, who teaches at JNU, and is a member
of the National Commission of Minorities Saturday, July 14, 2007.
4
Afzal Wani, M. ‘Constitutionalism and Educational Policy, Metropolitan Book Co. Pvt. Ltd., New Delhi 1990.
5
Article 37 of the constitution of India.
6
Article 38(2) of the constitution of India.
7
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8 Bakshi P.M. ‘The Constitution of India with Selective Comments’ 8th ed. Universal Law Publishing Company Pvt.
Ltd. New Delhi 2007.
9 Article 14 of the constitution of India.
10
Article 15(1) & (2) of the constitution of India.
11 Article 15(4) of the constitution of India.
12 Article 16(1) & (2) of the constitution of India.
13
Article 16(4) of the constitution of India
16
19
Article 29(2) of the constitution of India.
22
23 Article 350A of the constitution of India.
24 Article 350B of the constitution of India.
25
Article 25 Explanation 1 of the constitution of India.
26 Haskar, Urmila,’ Minority Protection and International Bill of Human Rights, Allied Publishers, Bombay, 1974.
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authenticity of this text must be verified from the original source.

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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Monday, October 24, 2022

22 ALJ (2014-15) 291

Growth of Entire Nation Requires to Empower Indian Backward Muslim

GROWTH OF ENTIRE NATION REQUIRES TO EMPOWER INDIAN BACKWARD MUSLIM

Religion depicts the main socio-cultural characteristics of a person. Different

people within a given national state:

CONSTITUTIONAL GUARANTEES TO MINORITIES:

v. authority of State to make ‘any provision for the reservation of appointments

vi. provision for facilities for instaiction in mother-tongue at primary stage;23

NATIONAL COMMISSION FOR MINORITIES:

Ranganath Misra Commission, National Commission for Schedule Caste and

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