Beyond the backwardness cap

Quota for Muslims beyond the 50 per cent ceiling in Telangana is justified

Written by Faizan Mustafa | Published:April 22, 2017 12:52 am
telangana, muslim quota bill, Telangana assembly, Telangana-muslim quota, muslim quota hiked, scheduled tribe, scheduled caste, reservation, telengana passes reservation bill, Telangana news, india news, indian express Telangana Chief Minister K Chandrashekhar Rao (File Photo)

On the day the BJP resolved in Bhubaneswar to reach out to Pasmanda (backward) Muslims, the Telangana assembly passed a law increasing the reservation for OBC Muslims in jobs and education from 4 per cent to 12 per cent. It asked the Centre to include the 62 per cent reservation in the state in the Constitution’s Ninth Schedule — on the pattern of Tamil Nadu, which has 69 per cent reservation. The 50 per cent cap on reservation is a judicial innovation and is not mentioned in the Constitution. Ninety per cent of Telangana’s population is SC/ST and OBC; so, the 50 per cent limit is irrational in the state’s case. Since two five-judge benches and one seven-judge bench of the Hyderabad High Court had struck down reservation for Muslims earlier, the state government is keen to get its new reservation law inserted in Schedule Nine, which, as the law stands today, gives some protection against, but not complete immunity from, judicial review.

Technically speaking, the latest legislation cannot be called reservation for Muslims as the benefits will not accrue to all Muslims in the state. They will only be for some Muslim castes such as butchers, carpenters, gardeners and barbers. Similar occupational castes among the Hindus enjoy the benefits of reservation. The legislation passed by the Telangana assembly will thus benefit certain classes identified on the basis of social and educational backwardness. Strictly speaking, such reservation will not be against Article 15(1) of the Constitution which prohibits discrimination “only on the basis of religion”.

The Backward Classes Commission headed by B.S. Ramulu approved the findings of the G. Sudhir Commission (2016) which rightly found the 11 yardsticks for determining backwardness laid down by the Mandal Commission, and approved by the Supreme Court in the Indra Sawhney case, outdated. The parameters for reservation laid down in the Indra Sawhney case need to be reviewed.

In fact, the RSS chief, Mohan Bhagwat, is right in calling for an objective review of the reservation policy. In the Jat reservation case, the apex court has pointed out that new parameters to determine backwardness need to be evolved and we should move away from caste-centric parameters.

Accordingly, the Sudhir Commission has come up with an “index of deprivations” of all communities to show that while Hindu SCs/STs have an overall deprivation level of 82.8 per cent in Telangana, Muslims OBCs are next on the index with a score of 69.5 per cent. Hindu OBCs are doing much better with a deprivation index of 50.2 per cent — others have an extremely low deprivation index of just 20.5 per cent. Thus, on most  indicators, Muslims in Telangana have a  relatively high deprivation level.

In 2004, the Andhra Pradesh government directed its Commissionerate of Minority Welfare to submit a report on the social, economic and educational backwardness of the Muslim community. A government order was issued on the basis of the Commissionerate’s report in 2004 providing 5 per cent reservation for the entire Muslim community, treating it as a backward class. The High Court struck down this reservation in the T. Muralidhar Rao case (2004) on the technical ground that the Backward Classes Commission was not consulted.

In compliance with the directive, the state referred the issue to the Backward Classes Commission. Based on the commission’s report, the state government promulgated an ordinance in 2005, declaring the entire Muslim community as backward. It provided 5 per cent reservation to the community. The High Court again struck down this reservation in the B. Archana Reddy case (2005) on the ground that while the benefit was extended to the entire Muslim community, the Backward Classes Commission had not identified the community’s social backwardness properly. The five-judge bench, though, reiterated that there was no bar on declaring Muslims, as a community, socially and educationally backward, provided they satisfy the test of social backwardness.

To meet these gaps, the state referred the matter to the Backward Classes Commission again and legislated an act in 2007. But the High Court refused to accept the Commission’s recommendations, again arguing that it had failed to evolve scientific criteria to determine Muslim relative backwardness. However, the Supreme Court in the Indra Sawhney case did hold that the “Muslim community as a whole may be found socially backward”.

The Backward Classes Commission’s latest recommendation has evolved scientific criteria through a “deprivation index” which demonstrates that in educational attainment, Muslims are 14 per cent behind STs and 60 per cent behind other Hindus. In work participation, they are 32 per cent below the SCs and 41 per cent below the STs. In the landholding index, Muslim community households are 60 per cent below the SCs and 70 per cent below STs. There is also the issue of social backwardness within the community. This author was told that many Muslims refuse to pray under an imam from the Noorbash caste. One hopes that the issue will not be used to polarise society for electoral benefits.

The writer is vice chancellor, NALSAR University of Law, Hyderabad. Views are personal
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