Politics of Reservation

India : Federation of Communities

Irfan Engineer

The Council of Ministers of the State of Maharashtra in its meeting on 25th June 2014 (Council Meeting No 171) gave its approval for 16 percent reservations for Maratha community (roughly 32% of the state's population and in addition to the Kunbi Marathas, already included in the list of OBCs in Maharashtra) and 5 percent reseivation for 50 backward Muslim communities (roughly 10.6% of the state's population, and in addition to Julahas, Momins, Ansaris, Rangrez, Telis, Nakkashis, Muslim Kakar, Pinjaris, Fakirs, etc. already included in the OBC list in Maharashtra) in jobs and education in the state. With the addition of 21 percent to the quota, total reservation in the state will go as high as 73 percent. A Writ Petition has been filed in the High Court of Bombay to challenge the 16% reservations to the Marathas on several grounds, the main being that Marathas are not socially or educationally backward. 10 of the 17 Chief Ministers of Maharashtra have been from the Maratha community. Presently, 152 out of 288 MLAs in Maharashtra are from Maratha community which constitutes 32% of the population. They are dominant politically and socially in the rural areas, particularly controlling Sugar Cooperatives, Cooperative Banks and several professional educational institutions. This Marathi State has in fact become a Maratha State.

Reservation of appointments or posts can only be in favour backward class of citizens, who in the opinion of the State, is not adequately represented in the services under the State as per Article 16(4) of the Constitution. Similarly, the State is not prevented from making any special provision for the advancement of any socially and educationally backward classes of citizens, SCs and STs, like, reservations of seats for admission in educational institutions under Article 15(4). However, that can only be for socially and educationally backward classes, SCs and STs. The Articles 16(4) and 15(4) emphatically state the principles of equality that are already implicit in the first clauses of both the Articles—that of equality of opportunity and non-discrimination. The provision for reservation of appointments or posts in favour of any backward class of citizens is a matter of policy of the Government, of course subject to the constitutional parameters and well settled principle of judicial review. The provision of reservation under Article 16(4) is for any class of citizens which includes not only Hindus but Muslims, Christians, Sikhs, Buddhists Jains etc., according to the Supreme Court in Indra Sawhney judgment. The Supreme Court also held, "Reservation being extreme form of protective measure or affirmative action it should be confined to minority of seats. Even though the Constitution does not lay down any specific bar but the constitutional philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, not to exceed 50%."

The Council of Ministers’ decision
The moot question is does the Maratha community and 50 Muslim communities constitute socially and educationally backward classes? The Council of Ministers relied on the Narayan Rane Committee Report in case of Maratha community and Report of the Study Group under the Chairmanship of Dr M Rahman (henceforth referred to as "the SG") in case of 50 Muslim communities while deciding to reserve seats for jobs and in educational institutions. It would be fundamentally wrong to club the conglomerate of sub-castes that go by the name Maratha caste as one class. The Maratha community has two major conglomerates of peasant sub-castes and the warrior sub-castes. The former conglomerate is called kunbis while the latter is called shayannav kulis. While the warrior conglomerate is more dominant, the peasant conglomerate is less accommodated compared to the former. Both maintain their separate identity through prohibition of inter-caste marriage between the two. To classify both the conglomerates as one class for the purpose of determining backwardness is therefore fundamentally a wrong proposition.

Interestingly, neither the SG identified or named the 50 Muslim communities to be backward nor the decision of the Council of Ministers uploaded on the website names those 50 communities who will be entitled to 5% reservations in jobs and educational institutions. While the entire Maratha community without excluding the creamy layer will be given the benefit whereas the 50 Muslim communities given benefit of 5% reservations will be excluding the creamy layer. The Chief Minister of Maharashtra, Prithviraj Chavan, in his interview to the media stated that the decision to give reservations is not on the basis of religion but on the criteria of backwardness.

There is no indication who and on what criteria backwardness was judged. The SG merely quotes the figures of 2001 Census and Sachar Committee Report of 2006 and a study carried out by Prof Abdul Shaban of TISS in 2009. The aforesaid three reports do not classify or name the Muslim communities nor study the communities in a disaggregate manner, that is to say they do not study e.g. the Nakshbandis, Baigs, Mir, Hakeem, Mulla, Hyadri, Noori Usmani etc. The statistical studies of levels of literacy, educational achievements, livelihood, employment, representation in Government posts, incidence of poverty, access to credit, housing loan, employment, health, sex ratios, etc. is for the Muslim community as a whole. The picture that emerges is, no doubt dismal and pathetic with high dropout rates in schools due to poverty and prevalence of child labour. Though literacy in the community is 78.1%, only 2.2% complete graduation, while only 1.4% Muslim women complete their graduation. 59.4% and 59.8% Muslims in urban areas and rural areas respectively live below poverty line. Work participation rate among Muslims is only 32.4% and among women WPR is as low as 12.7%. There are no Muslims in IAS cadres in Maharashtra and only 4.4% Muslims in the police force. How did the Council of Ministers conclude that not the community as a whole but the 50 Muslim communities needed reservations is beyond comprehension. To be fair to the SG, they recommended 8% reservations for the Muslim community as a whole. Out of the 40 major recommendations of the Mahmudur Rahman Committee, the cabinet decides to accept only one demand—that of reservations and that too partially. The other recommendations include 8% reservations in the housing sector, implementation of cultural diversity index, including Muslim dalits in the SC list, getting vacated waqf properties under illegal possessions, anti-discrimination legislation, inclusion of Muslims in priority sector lending by Banks, development of infrastructure in Minority schools, and many others. Will such a decision survive judicial review remains to be seen?

The decision of the Council of Ministers seems to be taken less for fulfilment of Constitutional obligation of State to progressively reduce inequalities by ensuring that the classes of citizens which were historically denied opportunities have a fair opportunity to overcome any disadvantage they may be suffering. Reservations are a political tool in the hands of a ruling party to mobilize a caste or community for electoral advantage. Sharad Pawar told media that there was nothing wrong if a ruling party wanted to exploit the opportunity for electoral gains. Muslims have been demanding reservations in government jobs and seats in educational institutions for over 30 years. However, their pleas went unheeded. After losing 42 of the 48 Lok Sabha constituencies in Maharashtra in the 16th general elections to BJP-SS-RPI alliance, the Congress wants to regain lost ground by wooing the Maratha community with reservations. Reservation for Muslim community seems less to address the malaise of backwardness among them and more a measure to make wooing Maratha community a little less obvious. Muslim community is a collateral beneficiary of what really is meant for the powerful Maratha community. What else explains gross non-application of mind if they were serious about extending the benefits of reservations to the Muslim community? Reservation for Muslim community through a badly drafted cabinet decision, without proper consideration, without following Constitutional steps and procedures and without seeking proper legal advice in the matter is bound to be struck down by judiciary, but by then the Legislative Assembly elections in Maharashtra would be over. Muslim community will carry the stigma of being appeased and would be even more strident target of hate and prejudice of the Hindu Nationalist constituency. But the Congress and NCP could care less.

The Constitution of India did not use the word secularism in its preamble when initially drafted. Yet secularism was in its basic structure. That is because it guaranteed equality under Article 14, 15 and 16 to all citizens irrespective of their religion or caste. Similarly, it guaranteed freedoms under Article 19 to all citizens. Under Article 25, the Constitution guaranteed freedom of conscience and freedom to profess, practice and propagate religion of one's choice to all persons. The only rights that religious denominations or any section thereof enjoy is right to manage its own affairs in matters of religion and to maintain institutions for religious and charitable purposes under Article 26. Art. 27 prohibits compulsion on any person to pay taxes, the proceeds of which are appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The Constitution also prohibits religious instructions in educational institutions wholly maintained out of state funds (Art. 28).

The rights and freedoms guaranteed by the Constitution vest in individuals and not in communities or castes. Vested with Constitutional rights and freedoms, citizens may chose to come together collectively for their social, cultural and religious needs. However, at no point in time the rights and freedoms of the individual get transferred to the collective howsoever it may be defined -religious, ethnic, caste or linguistic. They are not perceived by the Constitution to be permanent and rigid collectives with barriers that are insurmountable for the members of collective. Of course there are some exceptions to this general rule—women, children, or if a class of citizens is socially and educationally backward or belongs to SC or ST or belongs to a group of people deprived of justice—social, economic political—or weaker do enjoy rights as a collective till they remain weaker sections or socially and educationally backward or victims of discrimination. Such classes are entitled to affirmative action, which includes reservations and other welfare measures.

However, political parties constantly defeat this Constitutional principle for their narrow political gains. Instead of ensuring individual freedoms and ensuring justice—social, economic and political, they chose the easy way out—to become vehicles to promote interests of the elite of assorted collectives either based on caste, community or ethnicity and rally help them construct rigid boundaries and deepen identities. In order to facilitate the elite to construct boundaries and deepen identities based on caste, religion, language, region or ethnicity, the parties misuse or want to misuse authority and institutions for governance to subvert the Constitution and distribute largesse based on caste and community. The political parties like the Congress, Samajwadi Party, BSP etc that prefer to call themselves "secular" parties, want the largesse and political posts, and structures of opportunities to be distributed based primarily on caste with their favourite caste getting disproportionate share than due to them based only on their caste, whereas the BJP would want the largesse, posts and structures of opportunities and benefits and privileges of citizenship to be distributed based only on religion.

In the process these parties convert India into a federation of communities based on religion, caste, region, language or ethnicity, with different communities enjoying different privileges. Some would demand Marathas should get superior rights and privileges while others would justify other castes are entitled to such a treatment and still others would scream that Muslim community should get better treatment than others and yet others would claim that Hindus being indigenous have a better right. Collectively all of them are making a mockery of the constitution and subverting rule of law. The rights and entitlement then get negotiated on the basis of numerical strength, muscle power and political clout that a particular collective can muster in an environment of might is right. The prospect of continuous negotiation and re-negotiation of rights and entitlements of assorted collectives as their political clout, numerical strength and muscle power changes produces incessant conflicts and violence. If the politicians and the elite of communities do not see reason and wisdom injustice for citizens as citizens, on the principle of equality and equity, will the other institutions of democracy rise to the occasion to ensure justice for all?

Vol. 47, No.9, Sep 7 - 13, 2014