On March 25, 2010, the Supreme Court through a bench headed by Chief Justice K.G. Balakrishnan, passed an interim order observing: “The government views certain sections of Muslims as backward and wants to give reservation. What’s wrong with it?”.
The Supreme Court has referred the matter to a constitution bench to decide on the constitutional validity of the Ordinance promulgated by Andhra Pradesh Government. Note that the reservation policy of Andhra Pradesh government uses religion and social backwardness as indicia for identifying beneficiaries of reservation in government jobs and educational institutes in Andhra Pradesh. The decision of the Andhra Pradesh High Court is discussed here. The order of the Andhra Pradesh High Court has been stayed by the Supreme Court.
However, the Supreme Court refused to allow extension of benefit of reservation to the 15th category of Muslims to which Andhra Ordinance extended, as the social groups were not specified. It appears that the Court is of the view that it is not averse to upholding reservation for Muslims, so long as sufficient justification for extending reservation to identified groups is provided.
The constitution bench is expected to take up the case in August.
In a presentation titled "Individual Rights in India: A perspective from the Supreme Court" (April 3-6, 2009) at the International Roundtable Conference’ University of Georgia, Mr. K.G. Balakrishnan, the Chief Justice of India , provides an elaborate view of the protection provided to individual rights by the Constitution of India and how they have come to be interpreted by the Supreme Court of India over the last sixty years. He concedes that it is not possible to present a complete understanding of individual rights in all spheres of public law.
He mainly focuses on the evolution of ‘religious freedom’, the interplay between individual rights, groups and governmental interests and the need to balance them. He dwells upon the ‘seemingly existential question’ ofwhether the guarantees provided by Articles 25-30 of the Constitution are veered towards ‘No Concern Secularism’ or ‘Equal Respect Secularism’ and the conflicting notions of secularism that were propounded and debates upon by the members of the Constituent Assembly . He also mentions how the Indianised version of secularism i.e. 'Equal Respect Secularism’ recorded a significant victory, though certain concerns of ‘No Concern Secularism’ were also accommodated. The allowing of religious instructions in private and partially aided educational institutions is the result of the compromise between the competing strands.
He also discusses in detail the nexus between the protection of minority rights and the exercise of ‘religious liberty’ which have been further complicated by debates on interference with personal laws of the religious minorities and the feasibility of Uniform Civil Code for them. He points out that ‘personal laws’ were not included in definition of law under Article 13 of the Constitution and hence cannot be scrutinized on the basis of constitutional principles.The clash between the ‘group rights of religious minorities’ and ‘the individual rights of the members of the minority groups’ is clearly reflected in the difficulty posed in reconciling the competing interests of ‘non-interference with customary practices’ as they are regarded as an essential condition for protecting the group rights of religious minorities and the duty of the State to bring an end to those customs that have the effect of continuing gender-discriminatory practices.
Among other issues, the presentation also deals with the ideal of ‘state neutrality’ and how its practice by the Indian state has been repeatedly questioned in the recent past. The CJI suggests that the codification of a Uniform Civil Code presents a ‘litmus test for legislative interference and codification as a strategy of social reform.’ He takes a stand that the religious freedom impedes the pursuit of constitutional objectives of strengthening democracy, minority rights and rule of law. To quote him, “It has also been argued that these western notions of secularism are unsuitable for the Indian cultural setting, but unfortunately those who have argued for an indigenous notion of privileging religious autonomy have also tended to support religious extremism. In this respect the onus has been on the Supreme Court to show the way.”
The shaping up of secularism and minority rights in Constitutional Assembly Debates has been also dwelt upon by Rochana Bajpai (Lecturer, School of Oriental and African Studies, University of London) in an article published in May 27, 2000 issue of Economic and Political Weekly.
This article published in the Economist (March 4, 2010) highlights the poor socio-economic situation and educational backwardness among the majority of Muslims, the largest religious minority in India. Relying upon the Sachchar Committee’s Report and Ranganath Mishra Commission’s findings, both of which it does not name, the article stresses on the fact that that the situation of most of the India’s 160 Muslims is as bad as Dalits. It also quotes the Commission on why the Dalit Muslims and Christians are also entitled to reservation, as they too, like their Hindu brethren are ‘deprived.” The article blames the politicization of the entire issue by the mainstream political parties for electoral gains as one of the major reasons for lack of any concrete action.
Although the article recognizes the importance of reservation in social upliftment, it expresses doubt about the same being panacea for all ills. To support the same it point out a large section Dalits despite having the benefit of the quota based affirmative actions for the last six decades still continues to be social, economically and educationally backward. At the same time it notes that “‘unlike that downtrodden group, do Muslims lack inspiring torchbearers. They already dominate Bollywood and include many sports stars. Above all, India’s Muslims need better schools and better jobs, as do most poor Indians.”
This article forms another piece in the series of articles in the recent days that have sought to analyze the problems plaguing the Indian Muslims and the political reasons for inordinate delay/inability to take credible action bring the community into mainstream. Earlier posts on the blog have also discussed the feasibility of extension of quota-based reservation to socially and educationally backward classes among religious minorities.
