Last week, the Supreme Court made an important point about positive discrimination in India. Quashing the UPA government’s decision to include Jats in the OBC category, Justices Ranjan Gogoi and Rohinton F. Nariman said : “An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the state.”
This judgment was well in tune with the Bombay High Court in January, when it directed a stay on reservations for the Maratha community, which, according to the judges, “is not a socially and educationally backward class” (and is certainly not lagging behind the Jats), and at the same time, allowed 5 per cent reservation for Muslims in educational institutions. The court made this decision on the basis of empirical evidence and emphasised this point: “In so far as reservations for specified Muslim communities, is concerned, there exists sufficient material or quantifiable data to sustain their classification as ‘special backward class’.”
What is this evidence? Primarily the data the judges found in the Mahmood-Ur-Rahman Committee report (2013). According to this, while Muslims constitute 10.6 per cent of Maharashtra’s population, their share in public services is only 4.4 per cent and their “representation” among prisoners, 36 per cent (similar to American Blacks, who constitute 37 per cent of prisoners and are about 14 per cent of the population). But the judges of the Bombay High Court found the figures illustrating the educational backwardness of the state’s Muslims even more alarming: whereas 47 per cent of Muslim children go to primary school (against 38 per cent for Hindus), dropout rates are so high that only 11.3 per cent remain in middle school, 4.2 per cent in higher secondary (against 6 per cent for Hindus) and 3.1 per cent at the graduation level and above (against 5.9 per cent for Hindus). This is why, according to the court, the previous state government was justified in exceeding the ceiling limit of 50 per cent to add another 5 per cent of reservations in educational institutions.
Interestingly, these figures are not so different from those used by the Post Sachar Evaluation Committee headed by Amitabh Kundu. In its report submitted to the Union minister of minority affairs, Najma Heptulla, in 2014, the committee highlighted that the literacy rate of Muslims (70 per cent) was below that of Hindu OBCs (74 per cent) and “General Hindus” (86 per cent). It also showed that the percentage of graduates among Muslims (5 per cent) was hardly superior to the proportion of graduates among the SC/ STs (4 per cent), and much below the percentages for Hindu OBCs (8 per cent) and “General Hindus” (11 per cent). But the most disturbing point lay elsewhere: while the monthly per capita expenditure of Muslims has increased by 60 per cent between 2004-05 and 2011-12 according to the National Sample Survey Office, it has increased by 69 per cent for Hindu STs, 73 per cent for Hindu SCs, 89 per cent for Hindu OBCs and 122 per cent for “General Hindus”. The gap is broadening, especially in urban India, where the proportion below the poverty line is now higher among Muslim OBCs than among Hindu SCs.
This trend matters for policies of positive discrimination intended, as Justices Gogoi and Nariman pointed out, to identify new backward classes that are not necessarily caste groups. As they said, “Backwardness is a manifestation caused by the presence of several independent circumstances, which may be social, cultural, economic, educational or even political. New practices, methods and yardsticks have to be continuously evolved, moving away from a caste-centric definition of backwardness. This alone can enable recognition of newly emerging groups in society, which would require palliative action.” Muslims are eligible for at least some forms of positive discrimination among “new” backward groups. That is why the previous government of Maharashtra had identified 50 Muslim communities that would qualify for the 5 per cent quota. This is also why the Kundu Committee, considering that the UPA’s 15-point programme for minorities included a limited number of social schemes, recommended its enlargement and that some Muslim groups should benefit more from positive discrimination. According to the committee, Arzals have to be included in the SC category and “artisanal groups (Ajlafs) can be included in the ‘most backward’ sub-category, along with other similarly placed caste groups from other religions”.
None of these recommendations has been to the liking of the BJP governments in the state and at the Centre. Heptulla has spoken against reservations for Muslims. In Maharashtra, the Devendra Fadnavis government, while supporting the 16 per cent quota for Marathas initiated by the Congress/ NCP government, scrapped reservations for Muslims in education, against the interim decision of the Bombay High Court.
These actions (or inactions) stand in stark contrast with the assessment of the situation of Muslims by Prime Minister Narendra Modi. In his first speech in Parliament in June 2014, he had declared: “Even the third generation of Muslim brothers, whom I have seen since my young days, are continuing with their cycle-repair job. Why does such misfortune continue? We will have to undertake focused activity to bring about change in their lives. We will have to bring such programmes. I do not view such programmes within the prism of appeasement. I see them as a way to bring a change in their lives. No body can be called healthy if one of its organs is disabled. All organs of the human body needed to be fit in order for a person to be healthy. Similarly, all sections (organs) of society need to empowered.”
Indeed, no nation can truly develop with 15 per cent of its population lagging behind. That was precisely the rationale of the positive discrimination programme in favour of SCs. It has helped, to an extent. This policy — which does not need to be caste-centric, as the Supreme Court has said — could be tried in the case of Muslims. Or the 15-point programme, which has made hardly any difference, could be upgraded. But inaction is certainly not an option, especially for a PM projecting the image of a doer. While a politician thinks about the next election, a statesman thinks of the next generation.
Jaffrelot is senior research fellow at CERI-Sciences Po/CNRS (Paris), professor of Indian Politics and Sociology at the King’s India Institute (London), global scholar at Princeton University and non-resident scholar at the Carnegie Endowment for International Peace. Sihra is an alumnus from St Stephen’s College (Delhi) and Sciences Po (Paris)