It is generally not taken into consideration that special measures under Article 16(4) of the Indian Constitution were originally meant only for religious minorities. During the course of drafting, the term ‘minorities’ was replaced by ‘classes’ with the explanation and firm assurance that the word class in English and in legal parlance always meant any section or group of people that included minorities. This came in the wake of Partition and the overall defensiveness on the issue of minority rights in that context.
Apart from discussions held during the framing of the Indian Constitution (see box), this issue was brought up by minority groups including us (Minorities’ Council) before the National Commission for Review of the Working of the Constitution (NCRWC), taking note of the drafting history of Article 16(4) and the debate in the constituent assembly as well as the judgement in the Indira Sawhney (Mandal Commission) case.
The chairman of the Commission, Justice MN Venkatachaliah readily agreed that the intentions of the framers and drafting history of the phrasing, the debate in the assembly and past practice as well as norms under human rights law all required that under-represented minorities should receive the benefit of reservations under Article 16(4).
Nonetheless, we still submitted before the Commission that in view of widespread misinterpretation of the clause, the NCRWC may either recommend the amendment by adding ‘minorities’ before ‘backward classes’ or else it may provide the explanation that no amendment is required for extending the benefit of reservation to minorities if and when considered desirable. The NCRWC thus included the following recommendation:
"3.7.1: There was plea on behalf of some minority communities for an express provision for reservation in favour of minorities both in Article 15(4) and 16(4). The commission, upon due consideration of the representations, felt that no special provision was necessary inasmuch as, under the existing provision of Articles 14, 15 and 16, it is open to the State to make reservation if it is of the opinion that such reservation is necessary and justified."
Why then is there such resistance to provide for reservations for Muslims as a backward community given this drafting history and interpretation by the National Commission for Review of the Working of the Constitution? My firm opinion is that this issue needs to be tackled upfront, looking at the stark figures of under-representation, denial, discrimination of Muslims at all levels, their socio-economic backwardness in general, and the pogroms (like Gujarat) that they continue to face within democratic India, in particular.
Muslims in India have suffered on both counts, i.e., historically accumulated backwardness and present-day discrimination. Their bulk comes from occupational groups that were denied opportunities in the past. In post-independence India they, irrespective of their foreign or indigenous origin or caste, have been subjected to exclusion and discrimination because of the stigma of Partition and because of the supposed wrongs of history committed by their supposed ancestors.
Archived from Communalism Combat, July 2004. Year 10, No. 99, Special Report 2