Indian journalist and politician
The object of the framers of the Constitution was, as ours must be, quite the opposite. It was to wipe out the cancer of caste even from Hindu society. Only with the greatest reluctance did they agree to allow reservations for the Scheduled Castes and Tribe – for they felt that doing even this much would perpetuate caste distinctions. The reservations were, therefore, to be exceptions to the general rule.
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Every single item betrays the singular purpose of the whole exercise–to provide the rationale for extending reservations to Muslims. Nor is that opportunism confined to the present ruling coalition. In the run-up to the 2005 elections in Bihar, rival groups were vying with each other promising reservations for Muslims qua Muslims.
How far we have descended! Today progressives dress up their casteism as secularism! The benefits of reservation shall be extended to Muslims and Christians also, they proudly announce. In Andhra the decision of the government has had to be twice struck down by the courts – the government had decreed reservations for Muslims qua Muslims. Even as moves are afoot to get that judgment reversed, the Central government directed the armed forces to count soldiers and officers by their religion. Nor was the move an inadvertence. It arose as a result of a committee that the government had appointed under a former chief justice of the Delhi High Court. Each member of the committee has been carefully selected for his ‘secular’ and ‘progressive’ beliefs. Each term of reference on which the committee has been asked to supply information and make recommendations has been just as carefully selected to justify reservations and other concessions to Muslims as a religious group:
And beware, the progressive judges have already put out the basis for extending reservations to Muslims or Christians as Muslims and Christians. The word that the Constitution uses is ‘communities’, the word it uses is ‘classes’, Justices Jeevan Reddy, Sawant and Thommen hold in Indra Sawhney. ‘Community’ and ‘class’ are wider than ‘caste’, they say. So, entities wider than ‘caste’ can certainly be subsumed under them, they say – the only proviso being that the groups so identified be ‘backward’. Second, in spite of the teachings of Islam, Christianity and Sikhism, castes persist in these religions also, they explain in justification. As that is the reality, it would be invidious to restrict access to reservations to the backward sections of Hindus alone...3
The Jharkhand government, in turn, has announced that members of thirty-two tribes that are the most backward – literacy level among nine of them is said to be just 10 per cent – shall be directly recruited into government service; those among them who pass the graduation examination shall not have to take the qualifying examination which all others who enter government service have to take.
With elections looming, in January 2006, the Government of Kerala announced another ‘package’ of reservations for backward castes and for Muslims: service rules of the state shall be altered to permit direct recruitment of these sections so as to fill the 40 per cent quota that has been set aside for them; if suitable candidates are not available from these sections, the vacancies shall not be filled by merit; the state Public Service Commission shall prepare an ‘additional supplementary list’ so that the vacancies may be filled only by these sections; 20 per cent of the seats shall be reserved for these castes in graduate and postgraduate courses in government colleges; the chief minister will himself monitor the implementation of the reservation policy; there shall be a permanent commission to ensure that reservations are fully filled...
Even as moves are afoot to get the Andhra judgment reversed, the government has directed the armed forces to count soldiers and officers by their religion. Nor is this move an inadvertence. It has arisen as a result of a committee that the government has appointed under a former chief justice of Delhi, Rajinder Sachar -each member of which has been carefully selected for his ‘secular’ beliefs. Each term of reference on which it is to supply information and make recommendations, as we noted at the outset, has been just as carefully selected to justify reservations and other concessions to Muslims as a religious group.
As for reservations not having been extended to members of religions that repudiate caste – Islam, Christianity, Sikhism – again, that is but make-believe. The chairman of the Minorities Commission, my friend Tarlochan Singh, sends me a list of fifty-eight castes and of fourteen tribal groups, Muslim members of which have been given reservations. Even those who convert to one of these religions, continue to remain entitled to reservation. The rule in Tamil Nadu is that if the name of the father falls in the lists of Backward Castes/Most Backward Castes/Scheduled Castes/Scheduled Tribes, then, even if the person has converted to another religion, he remains entitled to reservations. In Gujarat, members of Backward Castes continue to avail of not just reservations but even of advantages under the roster system after conversion – 137 castes and sub-castes have been listed as socially and educationally backward in the state; of these, twenty-eight belong to the Muslim community. In Karnataka, ‘caste at birth’ is the norm. In UP, several Muslim castes are included in the reservation list – Lalbegi, Mazhabis, even Ansaris. The position is no different in Madhya Pradesh, in West Bengal. The Indian Express correspondent in Kolkata reports that the government of the ostentatiously secular CPI(M) strained to have reservations in government service as well as educational institutions extended to Muslims qua Muslims, and directed the state Minorities Commission to ascertain how such reservation had been decreed in Andhra Pradesh. The plan has had to be deferred for the time being, he writes, Only because the Andhra Pradesh High Court has struck down the Andhra order as unconstitutional.
Now, these are not stray phrases thrown in to light up a purple passage. They are stances, they are standpoints that indicate the direction in which that judgment will go, they are signposts which tell us where the reasoning being advanced in the text will eventually end. Such formulations have a significance beyond the particular judgment in which they figure. Succeeding benches can strike the same pose and gallop further in the same direction.
On the other hand, when sticking to the text is what will advance the judgment, they become strict constructionists. Some of the most conspicuous instances of this can be found in judgments relating to Article 30, the article that deals with the ‘right of minorities to establish and administer educational institutions’. The country had been partitioned on the cry that Muslims will never be secure in a united India. The framers were naturally keen to reassure the minorities that they would be free to preserve their religion, language and culture. Accordingly, Article 29 was enacted guaranteeing them and assuring them of this freedom. In case they wanted to set up institutions for safeguarding their language, culture, religion, Article 30 was enacted assuring them that ‘All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.’ The context made the purpose clear: minorities would have the freedom to set up such institutions as they thought would best preserve their culture, religion, language. But, given what has been the climate of discourse since the framing of the Constitution, the judges became literalists. Minorities would have the right to set up and manage ‘educational institutions of their choice’ irrespective of the purpose for which the institution was set up. Thus, engineering colleges and dental colleges set up by a family of, say, Muslims would have freedoms from state regulation and oversight that engineering and dental colleges set up by run-of-the-mill Indians would not.
The result has been as predictable as it is iniquitous and absurd: if Ram Sharan sets up an engineering college, the state as well as the university concerned can prescribe all sorts of things it must do; if Mohammed Aslam sets up an exact clone of that engineering college across the road, teaching exactly the same subjects, using exactly the same textbooks, neither the state nor the university can regulate its functioning!
The first derailment was caused by plucking the words ‘of their choice’ out of context, by tearing them away from the object for which Articles 29 and 30 gave minorities the right to set up and administer institutions. A normal engineering college or a college of dentistry can by no stretch be taken to be an institution that has been set up to help conserve the language, script or culture of the minority. Yet, provided the engineering or dentistry college has been set up by members of a minority, it was presumed to enjoy the protection of Articles 29 and 30, and thereby be beyond the reach of the state.