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Developments since Independence, Committee Reports Devjani Bhuyan 30 May 2012

Constitutional provisions 1. The Constitution of India does not restrict the scheduled castes class to any select religions. The term Scheduled Castes has been defined in Article 366(24) read with Article 341(1) as: Scheduled Castes means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be scheduled castes for the purposes of this Constitution. (a) The president may with respect to any state or union territory, and where it is a state, after consultation with the governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be scheduled castes in relation to that state or union territory, as the case may be.

(b) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 2. Under these provisions, a Constitution (Scheduled Castes) Order was issued in 1950. Para 3 in the order said that any non-Hindu could not be regarded as a scheduled caste. Since this order was amended in 1956 to include Sikhs, and in 1990 the Buddhists, among the scheduled castes, since the latter amendment, this para says that nobody who is not a Hindu, Sikh or Buddhist can be a scheduled caste. The text of the order is reproduced below

The Constitution (Scheduled Castes) Order 1950 In exercise of the powers conferred by clause (1) of Article 341 of the Constitution of India, the president, after consultation with the governors and rajpramukhs of the states concerned, is pleased to make the following order, namely: 1. This order may be called the Constitution (Scheduled Castes) Order 1950. 2. Subject to the provisions of this order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in (Parts to (XXII)) of the schedule to this order shall, in relation to the states to which those parts respectively related, be deemed to be scheduled castes so far as regards member thereof resident in the localities specified in relation to them in those parts of that schedule

3. 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. 4. Any reference in this order to a state or to a district or other territorial division thereof shall be construed as a reference to the state, district or other territorial division as constituted on the 1st day of May 1976.

Moves for change by legislation Efforts have been made in the past to get the Constitution (Scheduled Castes) Order 1950 amended by legislation so as to make it religion-neutral. A number of private members bills have been moved in Parliament but to no avail. An official bill called the Constitution (Scheduled Castes) Order (Amendment) Bill was at last drafted in 1996. The opinions expressed by the state/UT governments on the bill, obtained by the central government, were divided. The government also took note of the recommendations of the 1983 Gopal Singh Panel and the central Minorities Commission which were strongly in favour of deleting para 3 of the SC Order of 1950, and of the Scheduled Castes and Scheduled Tribes Commission which was against the same. In view of all this divergence of opinion, the bill was not introduced in Parliament.

Recent court cases awaiting a decision 1. In three different pending petitions before the Supreme Court of India, the petitioners have challenged para 3 of the Constitution (Scheduled Castes) Order 1950 saying that a person not professing the Hindu, Sikh or Buddhist faith cannot be included in the lists of Scheduled Castes. They have relied upon the following grounds: (a) Secularism is a basic feature of the Constitution of India. The denial of equal privileges to persons of scheduled caste origin converted to Christianity is in violation of both the basic features enshrined in Article 25 and the preamble to the Constitution. (b) The Constitution has provided for equality of opportunity to all those who are similarly situated. Persons of scheduled caste origin converted to Christianity are identically situated vis--vis their counterparts professing the Hindu, Sikh and Buddhist religions. (c) Even after conversion, the caste label continues and it is difficult for a person in Indian society to get out of the vice of the caste system

(d) Caste is more a social combination than a religious group and even though the tenets of Christianity do not recognise caste, it is in fact a reality. (e) The only available judgement on this issue, namely the constitutionality of para 3 of the Constitution (Scheduled Castes) Order 1950, is in Soosai vs Union of India 1985 (Supp SCC 590). In the judgement, the Supreme Court had accepted that the caste continued even after conversion. It had however sought for more material to show that the handicaps of persons of scheduled castes had remained the same even after conversion to Christianity. In the said case, the court was not satisfied with the material placed before it. (f) The position of persons of scheduled caste origin converted to Christianity remains the same as before. They continue to be forced into the most demeaning occupations. Their position both in the church as well as amongst fellow Christians is no better than that suffered by their counterparts in other religious denominations. They continue to be both poor and socially and educationally backward . Intermarriages between them and upper-caste Christians are rare. In the churches, they are segregated from the uppercaste Christians. Even after death they are buried in different burial grounds

(g) The atrocities committed on the Dalits are uniform irrespective of the religions they belong to. Yet persons of scheduled caste origin converted to Christianity are deprived of special protective provisions solely on the basis of religion. T h e p e t i t i o n e r s h a v e sought the relief that the Supr eme Cour t should s t r i k e down para 3 of the Constitution (Scheduled Castes) Order 1 9 5 0 a s u n c o n s t i t u t i o n a l , being violative of Articles 14, 15 and 16 of the Constitution, and direct the government to extend the protection available under the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act 1989 and the Protection of Civil Rights Act 1955 to all persons of scheduled caste origin irrespective of their religion.

2. Seven writ petitions making the same demand are pending in different high courts, based mainly on the following pleas: (a) The presidential order of 1950 was issued by the president of India under Article 341 of the Constitution. The power conferred on the president by public notification is a delegated power which cannot run contrary to Article 13(2) of the Indian Constitution which states as follows: The state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. Under Article 13(3), unless the context otherwise requires, law includes any ordinance, order, by-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. So the presidential order of 1950 is unconstitutional and it is a black letter written outside the Constitution, introduced through the back door by an executive order. Under Article 341, the president has no authority to proclaim the para 3 of the Scheduled Castes Order contrary to the Articles 15(2), 16(2), 29(2), and it is also against the basic structure of the Constitution as decided in Kesavananda Bharati vs State of Kerala; and para 3 of the presidential order can be quashed as per the judgement of the Supreme Court in Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur vs Union of India (AIR 1971 SC 530 (1) SCC 85). Para 3 of the presidential order is an anathema which disfigures the beauty of the written Constitution of India.

There is a wide divergence in the views/opinions expressed on this subject before the commission. The following views, for and against, have been expressed before us: A. Views in favour (i) Even though Christianity and Islam do not recognise the caste system or untouchability, the ground reality in India is different. Persons of scheduled caste origin converted to Christianity/Islam continue to be subjected to disabilities, including untouchability associated with caste and occupation, as they continue to be part and parcel of Indian society. (ii) It is not only society that discriminates against persons of scheduled caste origin converted to Christianity/ Islam (inasmuch as such converts are not treated by other members of their own religion or by members of other religions as their equals); they are being discriminated against even by their own religious institutions like the church or mosque, the manifestation of discriminations being separate churches/mosques or separate prayer halls or prayer timings in the same church/mosque for them and earmarked areas for burial of their dead.

(iii) Denial of scheduled caste status to them despite untouchability-related practices being enforced against them or atrocities committed against them deprives them of the protection of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. (iv) Despite no visible change in their social or economic status as a result of conversion, the converts are deprived of the benefits of reservation, suppor t and de v e lopment s cheme s formul a t ed for the i r count e rpa r t s in the Hindu, Sikh and Buddhist religions. Thi s amount s to di s c r imina t ion by the s t a t e on the ground of r e l igion. (v) Exclusion of Christianity and Islam from the purview of the Constitution (Scheduled Castes) Order 1950 is discriminatory and unconstitutional, being violative of the provisions of fundamental rights guaranteed und e r A r t i c l e s 14, 15, 16 and 25 of the Constitution. Change of religion being a strictly personal matter, such change should not deprive persons of scheduled caste

origin [of the] protection and benefits available to similarly placed persons in other religions. (vii) Although Sikhism and Buddhism do not recognise the caste system, like Christianity and Islam, both Sikhs and Buddhists have been given the status of scheduled castes by amending the Constitution (Scheduled Castes) Order 1950. There is no reason as to why similar dispensation cannot be extended to similarly placed persons who profess Christianity or Islam. That this is not being done is discrimination on the ground of religion that is prohibited by the Constitution. (viii) Groups and classes of persons of scheduled caste origin professing Christianity/Islam who are included in the list of OBCs should be delisted therefrom and be given the status of scheduled castes.

B. Counterviews (i) The very basis of identification of a certain class of people as scheduled caste is social, educational and economic backwardness arising from the age-old practice of untouchability that flowed from a rigid caste system in the Hindu religion. (ii) Persons professing Chr i s t i ani t y or I s l am we r e not treated as depressed class/scheduled castes by the British in pre-independent India or by the Indian government after independe n c e . T h e s t a t u s o f d e pressed class/scheduled c a s t e s wa s an ins epa r abl e concomi t ant of the Hindu religion in British and independent India.

(iii) Persons of scheduled caste origin converted to Christianity/Islam who are soc i a l l y and educ a t iona l l y backward are included in the list of OBCs and are benefiting from reservation in services/ educational institutions in favour of OBCs and from other schemes and institutional support systems formulated for OBCs. (iv) Apart from the benefits available to the socially and educationally backward amongst Christians and Muslims as OBCs, they are also benefiting from the constitutional, legal and institutional protection/arrangements as members of minority communities. (v) Presently, reservation is available for SCs and STs @ 15 per cent and 7.5 per cent respectively although, as per the 2001 Census, their share in the population is much more. Grant of SC status to converts to Christianity/Islam would therefore adversely affect the benefits available to scheduled castes in the matter of reservation in services/posts and educational institutions and related matters.

To find a solution to a number of complications that were arising regarding the definition and designation of the Other Backward Classes, the central government, under Article 340 of the constitution, appointed the First Backward Classes Commission on January 29,1953. Kaka Kalelkar was appointed as the chairman of it and the commission thus named after him. The report was submitted on march 30, 1955. The commission formulated the following criteria to identify the other backward classes: Low social position in the traditional caste hierarchy of Hindu society. Lack of general education advancement among the major section of a caste or community; Inadequate representation in the field of trade, commerce and industry ; Inadequate or no representation in government service. It prepared a list of 2,399 backward castes/communities for the entire country; and 837 of these were classified as most backward. RECOMMENDATIONS MADE: Undertaking caste wise enumeration of population in the CENSUS of 1961; Relating social backwardness of a class to its low position in the traditional caste hierarchy of Hindu society; Treating all women as a class as backward; Reservation of 70% seats in all technical and professional institutions for qualified students of the other backward classes;

Minimum reservations in vacancies in all government services and local bodies for other backward classes on the following scale: CLASS I- 25% CLASSII- 33 1/3 % CLASSIII & IV- 40% However the commission had severe handicaps and were rejected by the government CAUSES OF REJECTION: The central government did not accept the recommendations of the commission on the ground that it had not applied any objective tests for identifying backward classes. The government opposed to the adoption of castes and preferred the application of economic testsEven Kaka Kalelkar, in his forwarding note virtually rejected the report stating it would have been better if we could determine the criteria of backwardness on principles other than caste as the caste test is repugnant to democracy and inimical to the creation of a casteless and classless society It was also criticized by the then home minister G.B. Pant who stated that the caste system was undeniably the greatest hindrance in the way of our progress towards an egalitarian society, and the recognition of specified castes as backwardness may serve to maintain and perpetuate the existing distinction on the basis of caste Further the government felt that the commission had classified a very large section of the population as backward and if special assistance to extended to all these people, the really needy will be swapped by the multitude. Therefore the commission stands rejected and the government has now left the decisions of identifying and defining and enumerating the OBCs into the hands of the state government.

As the central commission failed to define and identify the other backward classes it asked the state governments to draw up its own lists of OBCs and were asked to follow an economic and educational criteria to identify them rather than communal categories to emphasize the expansion of welfare among the poor. However here also we find important regional variation in formulating the state lists. The peninsular block comprising 4 Dravidians states ( Andhra Pradesh ,karnataka, kerala and tamilnadu) &Maharashtra had a long history of backward class identification(since preindependence time) except in Maharashtra a major segment of population 38% to 55% were listed and some scarce opportunities reserved for them. The Eastern middle band including states of Assam ,West Bengal, Orissa, Madhya pradesh there is no significant use of OBC category. Northern tier of states displays an intermediate pattern. J&K and Bihar follows southern pattern and the selection is on communal basis making a sizeable proportion of population. Punjab & U.P use admixture of geographical criteria along with communal one.

COMMITTIES SET UP AND RESERVATION GIVEN: In Karnataka the empowerment of OBC was started by Maharaja of Mysore in 1921. it also appointed the maximum no of committees/commissions e.g. Naga Gowda(1961), Havnur(1972), venkataswamy(1983) and O. Chinappa Reddy(1990) . However only Reddy commission methodology stands out as it used social & educational criteria and also identify the CREAMY LAYER. 68% of reservation was provided for the OBCs by the government In Tamil Nadu the Sattanathan commission (1970) identified 105 OBC communities using caste criteria. The Ambasankar Commission (1982) gave separate OBC lists in article 16(4) and 15(4) on the basis of socioeconomic & educational conditions. At present it gives 69% of reservations to the OBCs far beyond the limit of 50% set by the supreme court. Andhra Pradesh Manohar Prashed Commission for identification of OBCs. the report was presented in 1970 ,and it recommended 30% reservations for the community on caste basis along with other indicators of income. In 1977 Agisam Veerapa commission recommended further welfare measures which were accepted. Kerala state govt considered traditional occupation, economic backwardness & low social status of the converts as the criteria. 3 commissions were set up: Vishwanathan committee (1961) recommended 40% reservation in educational institution Kumari Pillai introduced income cut off but reservation given was same as above Third commission appointed in 1967 under M.P.Damodaran- gave 40% reservation to 8 categories of OBC identified Present scenario of reservation : Backward Classes 40 % (Ezhavas 14 %; Muslims 12% Latin Catholics 4 %; Nadars 2 %; Christian converts from S.C.s 1 %; Dheevaras1 %; Other Backward Classes 3 %; Viswakarmas 3 %) and S.C.s and S.T.s 10 %. Maharashtra the B D Deshmukh Committee submitted its report in 1964. Recommended 34% reservations for all Backward Classes.in1979,the state government issued orders that 80% of all vacancies under State Government, local bodies etc should be reserved for economically weaker sections of the society, who were defined on the basis of average monthly income. Presently, the total quantum of reservations in Maharashtra is above 50% with OBC getting 32% reservation.

Bihar on the recommendation of the Bihar state commission of backward classes the government revised the reservation formula known as the KAPOORI FORMULA in 1978. It not only identified the other backward classes but also most backward classes and divided the reservation in the following way: MBCs- 12%; OBCs- 8%; WOMEN-3%; Economically weaker section of UPPER CASTES- 3%. Gujrat A.R Commission submitted the Report in 1976. Recommendations made: 10% reservations in professional institutions, 10% reservation in class iii & iv services, 5% reservation in class I & II services. Presently Gujrat gives 27% reservation. Jammu & kashmir The Gajendragadkar Commission report 1968 recommendedEconomic backwardness, occupation, habitation, literacy and caste as determining criteria. 42% reservation currently implemented to 22 weak and underpriviledged classes. Reservation is on communal & vocational basis. West Bengal government set up a committee in 1980 , but the committee was not in favour of reservation in govt. jobs and stated poverty and low living standards as determining factors. Punjab- The government appointed a committee on backward classes in 1951 which recommended 2% reservations for the OBC population. Later the Brish Bhan committee recommended to raise the reservations to 5% but was not accepted by the government. Punjab has only 5% reservations for OBC. Uttar Pradesh -a most backward classes committee was appointed under the chairmanship of Shri Cheddi lal Sathi in 1975 which gave its recommendations in1977.the commission recommended the classification of BCs into 3 categories, and separate reservation for each aggregating to 30%.The recommendations were only partially implemented. Presently it gives 50% reservation.

Though the states were given full right to formulate their own list of OBCs the need for another backward classes commission were voiced when the Janata Party came in 1977. The president appointed the second backward classes commission on January 1,1979 i.e the mandal commission headed by B.P. Mandal. The commission submitted its report on December 31, 1980. CRITERIA USED FOR DETERMINING BACKWARDNESS: For determining the backwardness it considered three elements-

Caste-based social backwardness (crucial element)

Educational backwardness (linked element)

Economic backwardness (derived element)

SOCIAL: Castes/classes which are considered socially backward by others. Castes/classes which mainly depend on manual labour for their livelihood. Castes/classes where at least 25% females & 10% males above the state average get married at an age below 17 in rural areas and at least 10% females & 5% males in urban areas. Castes /classes where participation of female in work is at least 25% above the state average.

Castes/classes where the no. of children in age group 5-15 years who never attended school is at least 25% above the state average. Caste/classes where the rates of student drop out in the age group 5-15 years is at least 25% above the state average. Castes/classes amongst whom proportion of matriculates is at least 25% below the state average.

ECONOMIC: Castes/classes where the average value of family assets is at least 25% below the state average. Castes/classes where the no. of families living in kuccha houses is at least 25% above the states average. Castes/classes where the source of drinking water is beyond half a km for more than 56% of households . Castes/classes where the no. of households having taken consumption loan in at least 25% above the state average. A weightage of 22 points have been assigned to the above mentioned criteria's- 3 points to each social indicators, 2 point to each educational indicators and 1 point to each economic indicators. Those castes scoring 11 points and more were stated as backward and others treated as advanced.

80 70 60 50 40 30 20 10 0 India WestBengal Kerala UttarPradesh Bihar Assam Jharkhand Karnataka Uttaranchal Delhi Maharashtra Andhra Gujarat Rajasthan Madhya Haryana Tamil Orissa Himachal Chhattisgarh Punjab ST SC OBC

Mandal commission also identified the non Hindu OBCs and noted that caste cannot be made the basis of socially and educationally backward classes among the non Hindu communities. CRITERI ADOPTED FOR DEFINING NON HINDU BACKWARD CLASSES ARE: All untouchables converted to any non Hindu religion. Such occupational communities which are known by the name of their traditional hereditary occupation & where Hindu counterparts have been included in the lists of Hindu OBCs. E.g. nai, teli, dhobi, gujars. ENUMERATION : Proportion of Hindu backward classes was derived by subtracting from the total population of Hindus, the population of scheduled castes +scheduled tribes + the forward Hindu castes and communities.- this worked out to be 52% For non-Hindu OBCs this approach could not be adopted so a rough assumption was made that the non Hindu OBCs are of the same order & was also considered 52% therefore the actual proportion of their population works out to be 8.40%. So, the actual population of Hindu and non Hindu backward classes adds up to (43.7+8.4) 52% of the countrys population. RECOMMENDATIONS: The commission recommended 27% reservation for the OBCs (though the population was double the figure). The states which had already introduced reservation exceeding 27% , would remain unaffected by this recommendation.

To promote literacy, it suggested that an intensive and time-bound programmee for adult education should be launched in selected pockets with high conc. of OBCs population; residential schools should be set5 up in these areas and; vocational training was considered imperative. Separate financial institution should be established that foster business and industrial enterprise among Obcs. All developmental programmes at the state level especially designed for other backward class should financed by the central government in the same manner and to the same extent so done in case of SC & ST. LOOPHOLES OF THE COMMISSION: Mandal commission identified those castes as socially backward that are "considered socially backward by others". but the term "other " was not defined. Thus, such an indicator is un objective and too ambiguous because every caste is relatively backward. Another criteria for social backwardness is where a substantial proportion of both male and female members of a caste are married while below 17 years of age. This indicator corresponds reasonably well with the common sense of urban, educated, middle class Indians. However, for 2,000 years, in both principle and practice, it was a mark of upper caste and not lower caste status. Radhakrishnan (1996)makes the point that that those who get married before they reach the age of 17 do not necessarily regard themselves as socially backward on that account Another indicator of social backwardness used by Mandal Commission relates to the participation of women in work. A caste or community whose women are in outside employment to a significantly larger extent than the average is taken to be socially backward. However it can be argued that although work by women outside the home may indicate low social status in some cases, it may indicate the opposite in others. Much depends on the nature and context of work. Where women work as agricultural labourers in low wages and under humiliating conditions, they and the families to which they belong are usually assigned low social status. However, it may be different where they work as doctors, school teachers, or even gram sevikas.

the commission has given little weightage to the economic criteria in the identification of Backward Classes. Economic indicators have been reduced to the position of a "derived indicator" The other is by not attempting any elimination process. The commission did not try to find out which of the castes have overcome their historical disability in the course of the last four decades and therefore eliminate those castes from enjoying the undue advantage of reservation.

Because of the highly generalized criteria adopted the OBC is a huge group which includes rich landowners on one end and near SC on the other end. These are treated as equals. in fact scholars question if there can ever be an unambiguous criteria for identification of the OBCs .(AM Shah)"at the lower end are castes which are very nearly untouchable and very poor while at the top there are castes which are wealthy and powerful and posses a highly Sanskritised lifestyle. The idea of reservations for OBCs assumes that all the three thousand or so OBCs in the country are on par in a competitive situation. This defeats the very purpose of reservations

The validity of the procedure for identification & indicators of backwardness used by the Mandal commission was challenged in Indira Sawhney & others v/s the Union of India. In issuing its office memorandum of 13 Aug, 1990 the govt. of Idia rejected the OBC list prepared by the comission in TOTO. It included only those castes which were common for both the state and the mandal list. The Supreme Court of India in its landmark judgement, in Writ Petition (Civil) No.930 of 1990 Indira Sawhney and Others Vs Union of India and Others dated 16.11.1992 (Annexure-II) directed the Government of India, State Governments and Administrations of Union Territories to constitute a permanent body in the nature of Commission or Tribunal for entertaining, examining and making recommendations upon requests for inclusion and complaints of overinclusion and under inclusion in the list of OBCs . Therefore the govt of India enacted the NATIONAL COMMISSION FOR BACKWARD CLASSES (NCBC) ACT 1993. NCBC after studying all the commissions of the state and the central govt. came up with criteria of inclusion of castes in Obc list. In order to exclude the socially advanced people from the OBC list the NCBC came up with the concept of creamy layer. Creamy Layer:The Committee defined the creamy layer as when a person has been able to shed off the attributes of social and educational backwardness and has secured employment or has engaged himself in some trade/profession of high status and at which stage he is normally no longer in need of reservation. Therefore they stands excluded. Income criteria is used to exclude socially advanced person which was increased from 1 lakh to 2.5 lakhs annually.

The Supreme Court in November, 1992 in its judgment in Indira Sahni & Others v/s Union of India had directed the Central Government as well as the State Governments to specify the basis for applying the relevant and requisite socioeconomic criteria to exclude advanced persons/ sections, popularly known as Creamy Layer, from OBCs. Subsequently an expert Committee headed by Justice Ram Nandan Prasad was constituted by the Government. The recommendations made by the Committee for excluding the Creamy Layer amongst OBCs was accepted by the Government. Accordingly, the Department of Personnel and Training on 8th September 1993 issued an order stipulating that the rule of exclusion will apply to son (s) and daughter (s) of persons holding Constitutional positions. These include the President, the Vice-President, Judges of Supreme Court and High Courts, Chairmen and Members of the Union and State Public Service Commissions, Chief Election Commissioner, Comptroller and Auditor General of India, parents either of whom is a Class I Officer, parents either or both of whom is or are in the rank of Colonel and above in the Army and equivalent posts in the Navy and Air Force and the paramilitary forces. Families owning irrigated land, which is equal to or more than 85% of the ceiling limit in terms of irrigated land as per State land ceiling laws and the persons having gross annual income of Rs.1.00 lakh or above or possessing wealth above the exemption limits prescribed in the wealth Tax Act for a period of three consecutive years (income for salaries or agricultural land shall not be clubbed) are also excluded.

National Commission for Religious and Linguistic Minorities, also called as Ranganath Misra Commission was constituted byGovernment of India 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.[1] The commission submitted the report to the Government on 21 May 2007. Main Findings 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.

It s a very nice report .. infact ..

To understand this report first we should be aware of 1> mandal Commisson Report ( Read DD Basu and Wizard Polity) 2> TMA Pai Case and Islamia University case
So basically our Consti has not defined what "backward" means .. in Art 16(4) We say ..State may reserve any post to any backward class of citizen .. Now please note two things a> The word "backward" b> The word "Class"( not caste) So in this background Mandal commison sat to identify what exactly the word "Backward" means ? The commison said " backward means socially and economically backward " and In Hindus we can see caste as a class but in other socities which has no caste indicators like hold of land , education , trade etc can determine the backwardness

Now what Ranganath Commison has said on this --------------1. 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. 2.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. 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.

4.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.
which originally restricted the Scheduled Caste net to the Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc.

Here judicary has given two counter statements .. regarding the admissons to Unaided collegs .. The Art 30 says " establish and administer educational institutions of their choice" Please note the word used is "of their choice" ==> professional also ...!! N also this article gives the right to property for minorites . Plese read these case before .. RM commison says 1.Article 30 of the Constitution has become quite uncertain, complicated and diluted due to their varied and sometimes conflicting judicial interpretations, we recommend that a comprehensive law should be enacted without delay to detail all aspects of minorities, educational rights under that provision with a view to reinforcing its original dictates in letter and spirit. 2.National Minority Educational Institute Commission should be amended to make it widebased in its composition, powers, functions and responsibilities and to enable it to work as the watchdog for a meticulous enforcement of all aspects of minorities, educational rights under the Constitution. minority educational institutions has, in the interest of national integration, been restricted to about 50%, thus virtually earmarking the remaining 50% or so for the majority community we strongly recommend that, by the same analogy and for the same purpose, at least 15% seats in all non-minority educational institutions should be earmarked by law for the minorities as follows:-

4. (a) The break up within the recommended 15% earmarked seats in institutions shall be 10% for the Muslims (commensurate with their 73% share of the former in the total minority population at the national level) and the remaining 5 % for the other minorities. (b) Minor adjustments inter se can be made in the 15% earmarked seats. In the case of non-availability of Muslim candidates to fill 10% earmarked seats, the remaining vacancies may be given to the other minorities if their members are available over and above their share of 5%; but in no case shall any seat within the recommended 15% go to the majority community. (c) As is the case with the Scheduled Castes and Scheduled Tribes at present those minority community candidates who can compete with others and secure admission on their own merit shall not be included in these 15% earmarked seats. 5.backward sections among all the minorities, we recommend that the concessions now available in terms of lower eligibility criteria for admission and lower rate of fee, now available to the Scheduled Castes and Scheduled Tribes, should be extended also to such sections among the minorities.

For Muslims

Select institutions in the country like the Aligarh Muslim University and the Jamia Millia Islamia should be legally given a special responsibility to promote education at all levels to Muslim students by taking all possible steps for this purpose. At least one such institution should be selected for this purpose in each of those states and Union Territories which has a substantial Muslim population.
Lingusitic minorites (a) The law relating to the Linguistic Minorities Commissioner should be amended so as to make this office responsible for ensuring full implementation of all the relevant Constitutional provisions for the benefit of each such minority in all the States and Union Territories. (b) The three-language formula should be implemented everywhere in the country making it compulsory for the authorities to includes in it the mother-tongue of every child including, especially, Urdu and Punjabi and all necessary facilities, financial and logistic, should be provided by the State for education in accordance with this dispensation.

1.8.4% of the total OBC population, in the 27% OBC quota an 8.4% sub-quota should be earmarked for the minorities with an internal break-up of 6% for the Muslims (commensurate with their 73% share in the total minority population at the national level) and 2.4% for the other minorities with minor adjustment inter se in accordance with population of various minorities in various States & UT 2. which originally restricted the Scheduled Caste net to the Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. 3. at as the Constitution of India guarantees freedom of conscience and religious freedom as a Fundamental Right, once a person has been included in a Scheduled Caste list a willful change of religion on his part should not effect adversely his or her Scheduled Caste status.

The Rajinder Sachar Committee, appointed in 2005 by the Indian Prime Minister Manmohan Singh, was commissioned to prepare a report on the latest social, economic and educational condition of the Muslim community of India. The committee was headed by the former Chief Justice of Delhi High Court Rajinder Sachar, including other six members.[1][2][3][4][5] The committee prepared a report of 403 pages, and presented in the lower house (Lok Sabha) of the Indian Parliament on 30 November 2006 (20 months after obtaining the terms of reference from the PMO).[6] The committee had highlighted and presented its suggestions and solutions to include and mainstreamIndian Muslims. The online report is available from the Indian Government website.[7] The report is first of its kind revealing the backwardness of Indian Muslims, according to Sachar Committee report some of the major concers are: The status of Indian Muslims are below the conditions of Scheduled Castes and Scheduled Tribes.[8] The overall percentage of Muslims in bureaucracy in India is just 2.5 % whereas Muslims constitute above 14% of Indian population.[9] To ensure equity and equality of opportunities to Indian Muslims in residential, work and educational sector, the Committee had proposed multiple suggestions to be adopted, with a suitable mechanisms.

Summary of recommendations The report put forward some recommendations to eliminate the situation raised for Indian Muslim. Justice Sachar explained that the upliftment minorities and implementation of these recommendations would strengthen the secular fabric of Indian society as well as increase patriotism due to their all inclusive progress. The recommendation include: Mechanisms to ensure equity and equality of opportunity and eliminate discrimination. Creation of a National Data Bank (NDB) where all relevant data for various Socio Religious Communities are maintained. Form an autonomous Assessment and Monitoring Authority to evaluate the extent of development benefits An Equal Opportunity Commission should be constituted to look into the grievances of the deprived groups. Elimination of the anomalies with respect to reserved constituencies under the delimitation scheme. The idea of providing certain incentives to a diversity index should be explored to ensure equal opportunities in education, governance, private employment and housing.

A process of evaluating the content of the school textbooks needs to be initiated and institutionalized. The UGC should evolve a system where part of the allocation to colleges and universities is linked to the diversity in the student population. Providing hostel facilities at reasonable costs for students from minorities must be taken up on a priority basis. The Committee recommended promoting and enhancing access to Muslims in Priority Sector Bank Advances. The real need is of policy initiatives that improve the participation and share of the Minorities, particularly Muslims in the business of regular commercial banks. The community should be represented on interview panels and Boards. The underprivileged should be helped to utilize new opportunities in its high growth phase through skill development and education. Provide financial and other support to initiatives built around occupations where Muslims are concentrated and have growth potential.[2][7]

Responses to the committee findings There are different responses to the sachar committee findings from different part of India.[8][9] Follow-up action taken 15-point minorities welfare programme The Prime Minister has also unfolded a comprehensive 15-point programme for the welfare and empowerment of minorities.The new plan wants to help the minorities by Enhancing opportunities for education.Ensuring equitable share in economic activities and employment,Improving the conditions of living of minorities,Prevention and control of communal disharmony and violence.

Sarva Shiksha Abhiyan The Sarva Shiksha Abhiyan (SSA) or Education for All Programme, a national flagship programme to provide quality elementary education to all children in the 6 14 years age group through a time bound approach. Based on the data obtained from Census as well as District Information System for Education (DISE), SRIIMRB Survey etc., the Government has made a number of interventions in SSA to help the minority (Muslim) children in education. One of the thrust areas is to ensure availability of schools in all minority concentrated districts. During 2005-06, 4624 primary and Upper primary schools, and about 31,702 Education Guarantee Scheme (EGS) Centres were sanctioned in minority concentrated districts. During 2006-07, 6918 new primary and upper primary schools have been sanctioned in minority-dominated districts. 32,250 EGS centres with a total enrolment of 120.90 lakh children have been sanctioned for 2006-07. Sanction has also been accorded for enrolment of 11.25 lakh children in Alternative & Innovative Education (AIE) during 2006-07 in these districts. Madrasas/Makhtabs have been covered under SSA. The Madarsas affiliated to the State Madarasa Boards and satisfying certain conditions are eligible for such assistance as is available to other regular schools under SSA. So far 8309 madarsas have been assisted.

Facilities for minority girls Free textbooks are provided to all minority girls from classes I-VIII. Urdu textbooks are provided for Urdu medium schools and for Urdu as a subject. Based on the 1981 Census, 93 districts (now 99) in 16 states have been identified for focused attention. The major focus is on the states of Bihar, West Bengal, Uttar Pradesh and Assam. Out of the 1180 Kasturba Gandhi Balika Vidyalayas (KGBV), 210 schools have been sanctioned in minority blocks, 1430 minority girls have already been enrolled in KGBVs till 31.3.06. [edit]Minority Concentration districts In addition to above measures, there is also a special focus on 93 districts, which was found to be having more than 20% Minority population in the 1981 census, for SSA investments in 2005-06 and 2006-07. This included other religious communities like Christians, Hindus or Sikhs living as minorities in different parts of India Sachar Committees recommendations in the sphere of education include a special focus on free and compulsory education; institutionalizing the process of evaluating school textbooks so that they better reflect community-specific sensitivities; setting up quality government schools, especially for girls in areas of Minority concentration; and providing priming education in Urdu or native language in areas where the language is widely in use.