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Paper IV: Puppets on a string

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The conduct of the Archaeological Survey of India before, during and after excavations


The Shri Ram bricks (pic by Seetha)

4.1. Justice Agarwal has expressed his high opinion of the Archaeological Survey of India’s conduct and work at Ayodhya (paras 3879 and 3989). We do not unnecessarily wish to go into the history of the ASI but cannot but mention some of its recent misdemeanours at Mughal monuments, like its digging up the Anup Talau within UNESCO’s heritage site, Fatehpur Sikri, or the vandalism committed by it at the Red Fort, Delhi, destroying priceless marble screens and fountains (caught on camera by Rajeev Sethi), both condemned by the Indian History Congress, in formal resolutions, at its Kolkata session, 2000-01 (Proceedings, p. viii), and Mysore session, 2003 (Proceedings, p. 1472). As for the ASI’s expertise, it is of interest to note that since the mid-1990s it has been headed continuously, as director general (DG), by a non-expert civil servant shifted from time to time at the whim of the central government until this year (2010) when finally a professional archaeologist has been appointed to head it.
 

When the excavations were ordered by the Allahabad high court to be undertaken by the ASI, the latter was entirely controlled by the BJP-led government at the centre under a minister of culture (para 3789) belonging to the VHP, the author of the demolition of the Babri Masjid in 1992. The BJP itself had made the slogan of a Ram temple at the Babri Masjid site one of its main election slogans. On the eve of the excavations the BJP government changed the director general to install yet another non-professional civil servant, apparently in order to have a still more pliant instrument to control the ASI.
 

4.2. From the very beginning the ASI made clear its loyalties to its political masters’ beliefs and commitments. The high court in its order dated March 5, 2003 (para 216) asked the ASI to intimate its programme to “the Officer-on-Special Duty, Ram Janma Bhumi-Babri Masjid”. The ASI however insisted on addressing the designated officer as “OSD, Ram Janma Bhoomi” in its letters dated March 8, 2003 and March 10, 2003 thus significantly omitting the name Babri Masjid (para 223; also statements in ASI’s own Report, pp. 5-6). The new director general, ASI, while constituting the team of officers for the excavation, appointed 14 members placed under Dr BR Mani as team leader. Only one Muslim, an assistant archaeologist, was included in the team, as may be seen from the list in para 217.
 

These arrangements were in total contrast to what the high court itself had visualised in its orders of August 1, 2002:
 

“If it is ultimately decided to excavate the disputed land, in that event the excavation will be done by the Archaeological Survey of India under the supervision of five eminent archaeologists (Excavators), even though retired, including two Muslims…”
 

An eminent archaeologist surely means a person of the stature of DG or additional DG of the ASI, working or retired, or an archaeologist of equal stature from outside the ASI. Not one of the 14 members of the team, including the team leader, who was not even a director of the ASI, fitted this requirement. The team was so formed as to be led and guided by a pliant subordinate, not an eminent archaeologist. To make the team free from the dominance of one community, the court had desired that at least two out of five archaeologists supervising the excavations should be Muslims. The ASI formed a team of officials from which, until the court directed otherwise, Muslims were almost wholly excluded.
 

4.4. The “one-community” policy was also enforced by Dr Mani and his team on the labour force. When over 50 labourers were engaged for the work which began on March 12, 2003, not a single Muslim was found fit for employment. It seemed as if the ASI had decided that since it was ‘Ramjanmabhoomi’ ground, no Muslim could be allowed to enter it. A complaint about this was made to Dr Mani, team leader, ASI, on March 18, 2003. Mani’s reply, that he had left the recruitment to district administration (para 227), is hardly credible and amounts to no more than the proverbial “passing of the buck” by those who are caught in any questionable act. On March 26, 2003 the high court, presumably noticing Dr Mani’s attitude in the matter, expressly ordered that “labourers belonging to the Muslim community be engaged” and also that at least two more Muslim archaeologists be added to the ASI team (para 228). This had little substantive effect. As of April 4, 2003, eight days after the high court’s orders, there were only nine Muslims engaged, out of a total of 89 labourers (para 229).

Had Justice Agarwal looked at the ASI’s entire conduct, it might have struck him how the ASI’s behaviour from the very beginning of the excavations could engender legitimate suspicions which in the end also proved so correct… Yet a comprehensive clean chit is given in the judgement to the ASI despite the stream of motivated acts of impropriety and irregularity committed by the ASI officials
 

4.5. The communally biased attitude on the part of the ASI’s director general and the local team leader was thus clearly manifest in the formation of the 14-member team and the recruitment of labourers, in both of which scant regard was paid to the letter and spirit of the high court’s earlier orders.
 

4.6. There was thus every reason for the suspicion that the ASI team’s conduct was not likely to be impartial and above board. This began to be noticed in the way any materials likely to impede a temple-beneath-the-mosque theory were treated after the digging began.
 

4.7. Here we wish to refer to Mr Justice Agarwal’s assertion that the complaint about it was made too late (para 227) and was therefore motivated. The fact however is that in the beginning the crucial levels were not at all involved. As late as March 23, 2003, Dr BR Mani reported to the high court, through the DG, ASI, that excavation began on March 12, 2003, and then there were three non-working days (March 14, 17 and 18) so that before March 20, 2003, when the first complaint was made, excavation work had taken place only on five days. Moreover, until then no digging had proceeded below the floor of the Babri Masjid (para 225, sub-para III.1). So the crucial layers were just now being laid bare.
 

4.8. In view of the above, it is not at all fair to charge the complainants with delay in reporting the ASI’s treatment of artefacts. This was by no means what the bench thought at that time and by their orders dated March 26, 2003 (para 228) endeavoured to ensure that the ASI should take the minimum steps required for the proper recovery, registration and preservation of artefacts, and also measures to improve access for the counsels’ nominees to observe the excavation work. If the complaint had been as baseless as Justice Agarwal suspects then why should the bench have issued such orders?
 

4.9. On April 8, 2003 a complaint was filed to the effect that the ASI was not carrying out the court’s orders (para 229) and again the bench on April 10, 2003 passed detailed orders on the various lapses. The bench was so concerned about the ASI team’s casual approach to its orders hitherto that it ended the present orders with the injunction: “The observers are directed to ensure that this court’s instructions are carried out in letter and spirit” (para 230).


The Babri Masjid: As it was
 

4.10. Finally, the bench was so exasperated with Dr BR Mani’s way of bypassing its orders that on May 22, 2003 it passed the following extraordinary order:

“It is not necessary to comment much upon the work of the Team Leader of ASI [Dr BR Mani] for the last more than two months. We think it proper that another Team Leader should be appointed by the Director General, Archaeological Survey of India. However, Dr BR Mani shall also continue to work in the team” (para 235).

Thus the bench at the time found nothing to commend in the way Dr Mani had carried out the work on behalf of the ASI and desired that he be immediately replaced. Not desiring to show that he was being disgraced, his membership of the ASI team was however not terminated.

4.11. Justice Agarwal has not commented on this series of episodes and its implications. On the other hand, he takes to task the critics of the ASI’s conduct.

4.12. Justice Agarwal takes up some of the complaints made to the observers between April 14, 2003 and July 26, 2003. The response of Dr Mani to the complaint of April 14, 2003 was an admission that neither were animal bones being carefully recorded nor were pieces of glazed ware being sealed but he promised that now this would be done (para 3677). A similar response to the complaint of April 15, 2003 elicited a promise that the required videography and photography would be undertaken and a proper record would be kept (para 3678).

4.13. It was thus clear that the complaints were well taken. Yet Justice Agarwal takes exception to the complaint dated May 16, 2003 (para 3681) containing “the complaints regarding the recording of artefacts, brick-bat remains, etc, where the ASI instead of descriptions labelled them to serve its own objects”. The complaint, he says, was “mischievous and worthless”. Why? Because: “The ASI experts identify such item/ artefacts which ordinary people cannot. If only clear items were to be no expert would have (sic!) needed” (para 3681).

4.14. Here we are expected to look at “ASI experts” as “ordinary people” would. As a matter of fact, it is not quite so easy, in the case of broken artefacts or fragmented ‘architectural pieces’, for any ‘expert’ to imagine them as they were when they were complete pieces; and archaeologists have held different views about them. When Dr BB Lal, former director general, ASI, dug at what he called the Janma Bhumi mound in 1976-77, he was not able to identify any “pillar-base” there, as may be seen from his report published in Indian Archaeology 1976-77 – A Review (ASI, Delhi, 1980), pp. 52-53. Very properly, he did not attempt any identification of the material evidence while undertaking fieldwork and recording the finds. Only some 14 years later did he suggest such identification in the RSS journal, Manthan, October 1999; and his interpretation of the structural pieces was still open to doubt (see D. Mandal, Ayodhya: Archaeology after Demolition, Orient Longman, New Delhi, 1993/ 2003, pp. 26-40).

In the excavations at the Babri Masjid however, the “ASI experts” immediately began identifying and marking the pillar-less pillar bases. A similar act on their part was to give suggestive names like ‘divine couple’, ‘circular shrine’, etc where the terms ‘divine’ and ‘shrine’ were both subjective and motivated descriptions, not arising from any supposed professional expertise at all. At the same time, they neglected other very significant objects in total violation of professional requirements.

Peter L. Drewett, in his manual of field archaeology, notes: “Having identified the bones to species and to part of the skeleton, the bone assemblage should be quantified” (Field Archaeology: An Introduction, London, 1999, p. 156). The “ASI experts” however refused to record animal bones properly and failed even to tabulate them by species, trenches and layers in quantified form, as required by the standard manual of field archaeology we have just quoted. It is charitable to assume that the conduct of ASI “experts” in this matter arose not from gross ignorance (after all, they were “experts”) but from the fear that the presence of animal bones (cattle and caprine) could undermine their entire temple theory. One wonders therefore to whose acts the adjective “mischievous” could be more aptly applied.

4.15. With reference to the complaint on May 21, 2003, made about a pillar base in G-2 (para 3683), it is noteworthy that Shri AR Siddiqui does not at all deny the allegation that the digging was so carried out that a squarish base was being created. He just said the digging was not completed and so the objection was “premature”. That this was a wrong piece of information is shown by the fact that on May 18, 2003, the day register for this trench distinctly records: “A pillar base on plan” (para 3685); and another report of the same day (May 18, 2003) gave a more detailed description of “a structure of brickbats and rectangular in shape”, which was encountered “during digging” and which forthwith was declared a “pillar-base” (para 3688). So Shri AR Siddiqui’s reply (vide para 3683) was, to the say the least, evasive and misleading: A squarish or rectangular pillar base was in fact already recorded and he had to explain whether it really existed or had been created by removing surrounding brickbats – and this he entirely avoided doing.

4.16. On June 7, 2003 a detailed complaint was submitted, pointing out the severe breaches of prescribed archaeological methods and procedures so far pursued by the ASI: it is reproduced in para 3699. Though the high court had ordered Dr Mani’s removal as head of the ASI team on May 22, 2003, we find him still in that position on June 8, 2003 – another example of how casually the ASI treated the high court’s orders. Dr Mani thereupon delivered the following tirade against the complainants:

“There seems to be a calculated effort to defame the ASI and demoralise it’s (sic!) team member (sic!) by making statements through media and also through applications like the present one submitted by one of the parties to the case. ASI being the premier institution of the country has always been famous for accuracy and scientific approach in exploration and excavation work” (para 3700).

He goes on to claim that his team’s “recording of artifacts is perfect” – a claim ill-suited to the mouth of anyone not divine. Indeed Dr Mani’s tone is one which would have smacked of supreme arrogance and self-congratulation even if the words had come from the head of the ASI rather than a mere superintending archaeologist; and, of course, one can retort that repute acquired in times long past cannot become a cover for lapses so clearly detected by the complainants.

4.17. Since most of the issues relating to the acts of omission and commission on the part of the ASI have already been discussed in Paper III, we are here mainly concerned with how Justice Agarwal deals with the complaints.


Courtesy: India Today
 

4.18. First of all, he takes no cognisance of the utter dissatisfaction of the then bench with the manner in which Dr Mani and his team had carried out the excavations until May 22, 2003. He also overlooks how, despite the court’s orders for his replacement, Dr Mani continued to be in charge on June 8, 2003. In other words, the bulk of the excavations were conducted under a person who had lost the confidence of the high court itself.

4.19. Justice Agarwal on the other hand investigates who prepared the texts of the complaints and then, finding their authors to be two witnesses, PW 29 (Dr Jaya Menon) and PW 32 (Dr Supriya Varma), gives us the dates of their presence on the sites (paras 3704 and 3705) as if they were not entitled to help in drafting complaints for other days. The comments made by Justice Agarwal in para 3711 may here be seen. Did the court similarly look into how the ASI team leader could cover in his report the excavations conducted during days he was not present at the site? In para 3712 an unfortunate slip in the complaint is held to be an astoundingly serious lapse though it perhaps arose merely due to a misreading of the figure 220cm as 270cm. Such a slip hardly means that “either they [Dr Menon and Dr Varma?] have deliberately tried to misguide the authorities (!) or the complaint [the whole of it?] lack (sic!) bona fide.”

4.20. The justice then takes up the oral evidence of the two archaeologists. PW 32 (Dr Varma) claimed that she was present when Trenches G-2 and F-3 were being excavated (para 3714). But, says the justice, digging of F-3 only started on May 30 while she was present only until May 31. However, the very dates he gives mean that Dr Varma had been able to watch the digging of the trench for two full days.

4.21. In para 3717 from an objection of his (para 3715), easily answered, Justice Agarwal draws the following conclusion:

“From the texture and the over all (sic!) facts and circumstances, some of which we have already discussed it appears to us that as soon as underneath (sic!) structures started appearing, the complainants in consultation with their alleged (!) experts, engaged in preparing a kind of anticipatory ground to assail the ASI people, their proceedings. What was submitted on spot do (sic!) not show that it was a simultaneous preparation of something which was actually observed and found objectionable by the persons thereat.”

4.22. On complaints of manipulation of materials excavated, Justice Agarwal has checked with the ASI’s records and finds (e.g. para 3725) that these records do not confirm them, as if in their record the ASI “people” would care to show how they were playing with the finds!

4.23. In para 3729 Justice Agarwal brings in the GPR Survey Report. No significance could possibly attach to it once the ground was actually excavated and there was no point in Dr Varma (PW 32) reading it and comparing it with the excavations. It is difficult to see what value can be assigned to the “anomalies” predicted in the report by the little known firm Tojo-Vikas International (Pvt.) Ltd., curiously carrying the name of the Japanese war criminal, Tojo (changed to ‘Tozo’ by Justice Agarwal – para 215). Such ‘anomalies’, the worthy company’s report had told us, “could be associated with ancient and contemporary structures such as pillars, foundation walls, slab-flooring extending over a large portion of the site” (Text reproduced in ASI’s Report, p. 5). No pillars were however found except for one broken fragment in the Masjid debris; and the presence of bricks and brickbats was not at all predicted.

4.24. It would be a sad day if the intentions and motives of the archaeologists and historians who appeared for a party whose religious faith they did not share are doubted for that reason. A preceding bench had indeed appreciated their work (para 228). But now they have become “alleged experts” (para 3717) and “virtually hired experts” (para 3879) although no proof has been offered that they lacked qualifications nor that they received any remuneration from the Muslim parties to the suit.

Of Dr Menon and Dr Varma it has been said (paras 3746 and 3774): “as admitted by these two witnesses they were partisan and interested”. In fact however neither of them made any admission of this sort. Being “interested” means “having a private interest”, especially a “pecuniary stake” (see Oxford Concise Dictionary, s.v. “interest (n.)” and “interest (vt)”); is there then a suggestion that they had something remunerative to gain for themselves by their work as archaeologists at Ayodhya?

It may be that it is hard to understand the spirit which inspired archaeologists like Dr Menon and Dr Varma and the consequence of their work at Ayodhya. It may here be worth quoting from an article in the Hindustan Times, Delhi, July 6, 2003:

“It is saddening that one should be obliged to speak in this manner of the work of the ASI that was once an institution in which the country could take justifiable pride. Today one can only say that if it did not do worse at Ayodhya, part of the credit goes to the numerous archaeologists from many places in India who maintained a constant vigil at the excavations. They did so only out of a loyalty to their profession and to secular values. When one thinks of them, one cannot help feeling sentimental about a country which, amidst all its troubles, can bring forth such men and women.”

Had Justice Agarwal looked at the ASI’s entire conduct, it might have struck him how the ASI’s behaviour from the very beginning of the excavations could engender legitimate suspicions (which in the end also proved so correct).

4.25. The DG, ASI’s addressing the bench as “Ramjanmabhoomi” instead of “Ramjanmabhoomi-Babri Masjid”, the correct designation, was not a slip but a declaration of the ASI’s partisanship in the dispute. We have seen that the first team of officials it formed for the excavation was practically entirely Hindu in composition (13 out of 14). The labourers it first employed did not include a single Muslim. Should it not have been asked, if the ASI’s intentions were of scientific excavations without any manipulation then why this deliberate exclusion of Muslims from the initial ASI team and the labour force? Even after the court’s orders, only a grudging and nominal recruitment of Muslim labourers took place.

We have seen that the complaints made about slackness in recording glazed ware and animal bones, which could militate against the presence of a temple, were genuine and partly admitted by Dr Mani himself. The high court had to pass stringent orders that its wishes must be implemented. Finally, its dissatisfaction with the ASI team leader’s conduct of the excavations was reflected in the court’s order of May 22, 2003 directing that Dr Mani be replaced as team leader though he “shall also continue to work in the team”. The spirit of the order was defied by the ASI in that while it appointed Shri Hari Manjhi, director (antiquity), as team leader, it also brazenly ensured that “Dr BR Mani continued to direct the excavation” (ASI’s Report, pp. 7-8).

4.26. Dr Mani’s hand can be seen as the dominant one in the final report. While Shri Manjhi’s name appears as the co-author of the report, the Introduction is by Dr Mani alone. He is a co-author in three major chapters (II, Cuttings; IV, Structure; V, Pottery) while Shri Manjhi, the team leader, is a contributor to none of the chapters in the report! The author of the last chapter, ‘Summary of Results’, is left unnamed – a curious way of evading responsibility. In sum, the result is that the very person with whose conduct of the excavations the high court was not satisfied was yet given full rein to ‘direct’ the excavations and write the report. Dr Mani, as we have seen, had made his commitments fairly clear by his initial actions in Ayodhya and it is not surprising that the same commitment informs the final ASI report.

4.27. Such are the plain facts, almost all of which are brought out by the documents reproduced, in whole or in part, in Justice Agarwal’s own judgement. And yet in para 3989 Justice Agarwal holds that “all objections against ASI are, therefore, rejected”.

4.28. A comprehensive clean chit is thus given in the judgement to the ASI despite the stream of motivated acts of impropriety and irregularity committed by the ASI officials that we have traced. The ASI officials arrived at Ayodhya with clear indications of commitment to one side of the dispute – shown by the very composition of their staff and labour force – and they stuck to the task of manipulating, selectively recording and perverting evidence as much as they could, increasingly constrained as they came to be by the vigilance exercised by archaeologists from the academic world. The ASI’s final report could not but be a partisan document, as we have seen in Paper III, and its rejection must form the prelude to any correct perception of the past of the disputed site.

Archived from Communalism Combat, February 2011 Year 17  No.154, Section II, Paper IV: Puppets on a String

A stone in her hand

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Women are everywhere in these troubled times in Kashmir, and not in the places traditionally assigned to them

On a summer morning this July in Srinagar, tear gas from the troubled streets of Batmaloo began to roll into the first-floor home of Fancy Jan. The 24-year-old went to draw the curtains to screen the room from the acrid smoke, her mother told a reporter later, then turned away from the window and said: “Mummy, maey aaw heartas fire (my heart’s taken fire, mummy)”. Then she dropped dead, a bullet in her chest, the casual target of an anonymous soldier’s rifle. Fancy Jan was not a ‘stone-pelter’. She was a bystander, like many of the 50 people killed in the last two months. She is not the first woman to be shot by the security forces in 20 years of the troubles. But her random death, almost incomprehensible in the presumed safety of her family’s modest home, coincides with a vigorous unsettling of the way women have been represented in this conflict.

Until the other day, Kashmiri women were little more than a convenient set of clichés, shown as perpetual bystanders in houses that overlook the streets of protest. When seen outside of that protected zone, they were cast as victims, wailing mourners, keening at the endless funeral processions. For an occasional frisson there is the daunting image of the severely veiled Asiya Andrabi, chief of the Dukhtaran-e-Millat, a women’s group whose high media visibility seems inversely proportional to the modest numbers who adhere to their militant Islamic sisterhood. In black from head to toe, Andrabi always makes for good television, her arms and hands concealed in immaculate gloves, only her eyes showing through a slit. For the Indian media her persona insinuates the dark penumbra of Kashmiri protest, signalling the threat of ‘hard-line’ Islam, a ready metaphor for ‘what-awaits-Kashmir-if…’

But now an unfamiliar new photograph of the Kashmiri woman has begun to take its place on newspaper front pages. She is dressed in ordinary shalwar kameez, pastel pink, baby blue, purple and yellow. Her head is casually covered with a dupatta and she seems unconcerned about being recognised. She is often middle-aged and could even be middle-class. And she is carrying a stone. A weapon directed at the security forces. Last week, in a vastly underreported story, a massive crowd stopped two Indian Air Force vehicles on the highway near Srinagar. At the forefront were hundreds of women. The airmen and their families were asked to dismount and move to the safety of a nearby building. Then the buses were torched. This is not a rare incident: women are everywhere in these troubled times in Kashmir, and not in the places traditionally assigned to them. They are collecting stones and throwing them and assisting the young men in the front ranks of the protesters to disguise themselves, even helping them escape when the situation gets tough.

The government’s narrative of ‘miscreants’, of anomie and drug-fuelled teenagers working as Rs 200 mercenaries for the Lashkar-e-Tayyaba, has meanwhile started to appear faintly ridiculous. A more reasonable explanation is being proffered to us now: it is anger, we are told, the people of Kashmir are angry at the recent killings and that’s why the women are being drawn in. That is true but only partially. For this is no ordinary anger but an old, bottled-up rage, gathered over so many years that it has settled and turned rock-hard. That accumulated fury is the stone in her hand. To not understand this, to fail to reach its source – or fathom its depth – is to be doomed to not understand the character of Kashmir’s troubles.

Two events will provide useful bookends for this exercise. In February 1991 there was an assault on Kunan Poshpora village in North Kashmir, where a unit of the Indian army was accused of raping somewhere between 23 and a hundred women. And then, a troubled 18 years later, the June 2009 rape and murder of two young women in Shopian, South Kashmir. In the case of Kunan Poshpora, bypassing a judicial inquiry, the government called in the Press Council of India to whitewash the incident, allowing its inadequate and ill equipped two-member team to summarily conclude that the charges against the army were “a massive hoax orchestrated by militant groups and their sympathisers and mentors in Kashmir and abroad”.

The travesty of the investigations into last year’s Shopian incident involved innumerable bungled procedures and threw up many glaring contradictions till the government of India roped in the Central Bureau of Investigation to put a lid on it. They promptly concluded that it was a case of death by drowning. (In a stream with less than a foot of water.) The case remains stuck in an extraordinary place: charges have been filed against the doctors who performed the post-mortems, against the lawyers who filed cases against the state, against everybody except a possible suspect for the rape and murder, or the many officials who had visibly botched up the investigations.

In the absence of justice, the space between Kunan Poshpora and Shopian can only be filled with the stories of nearly 7,000 people gone missing, of the 60,000 killed and the several-hundred-thousand injured and maimed and tortured and psychologically damaged. The men of this society took the brunt of this brutalisation. What of the price paid by the women? It is when we begin to come to terms with their decades-long accretion of grief and sorrow, of fear and shame, that we will begin to understand the anger of that woman with the stone in her hand.

The current round of protests will probably die down soon. The mandarins of New Delhi will heave a sigh of relief, tell us that everything is normal and turn their attentions to something else. But only their hubris could blind them from noticing what we have all seen this summer in Kashmir. This is not ordinary anger. It is an incandescent fury that effaces fear. That should worry those who seek to control Kashmir. 

 This article was published in The Times of India on August 8, 2010; http://timesofindia.indiatimes.com

Archived from Communalism Combat. July-August 2010, Anniversary Issue (17th).Year 17, No.153 – Cover Story 2

Valley of fear, depths of despair

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As unrest continues to brew in the Kashmir valley, and more and more innocent people lose their lives at the hands of the police or security forces, it is increasingly apparent that the Indian state urgently needs to re-examine its position and dramatically alter its tactics in Jammu and Kashmir. The Indian polity must insist on this. The strategy employed by the Indian government over the years has denied a sizeable section of the people basic human rights and estranged them from the mainstream. The wrongs that are still being inflicted on them by state forces and militant groups, the Kashmiri people’s burgeoning anger and continuing alienation feeds a conflagration that will not be extinguished unless corrective action is taken, and taken without delay. This is not a grave matter for Kashmir alone; it is a perilous situation for India as a whole. It is a blot on India’s conscience as a nation, a distressing account of systemic cruelty and studied indifference to the sorry plight of an ever-growing multitude of its citizens. And even as we urge for fundamental changes in the status quo, we must do all we can towards reparation and to ensure that the average Kashmiri’s valiant and ceaseless quest for justice yields positive results.

A report of the Independent People’s Tribunal on Human Rights Violations in Kashmir reveals the extent of deprivation of basic human rights and the depth of alienation felt by the Kashmiri people. Excerpts from the report:

Aims

There is a general perception that the human rights situation in Jammu and Kashmir is bad and largely unaddressed. The various official human rights mechanisms, including the judiciary and the State Human Rights Commission, are unable to act proactively and rein in human rights violators, including the army, paramilitary forces, police and surrendered militants. In this context, it was felt that a civil society initiative, including retired members of the judiciary, was imperative to clarify the situation and the reasons for the continued deaths and suffering.

The practice of human rights abuse is protected, if not encouraged, by legislation like the Armed Forces (Special Powers) Act, the Jammu and Kashmir Public Safety Act and the Disturbed Areas Act – where security forces are given sweeping powers to shoot, kill, arrest and detain along with blanket immunity from prosecution for such heinous acts. These powers are in complete disregard of the most fundamental postulates of international law enshrined in the UDHR (Universal Declaration of Human Rights 1948), the ICCPR (International Covenant on Civil and Political Rights), the ICESCR (International Covenant on Economic, Social and Cultural Rights), the UNCAT (UN Convention Against Torture) and the UN Convention on the Elimination of Enforced Disappearances, among others. The latter two have been signed but not ratified by India.

Keeping in view the basic principles of human rights as enshrined under the Constitution of India and various international covenants, and in order to highlight the forms and extent of human rights abuse suffered by civilians in Kashmir, the Human Rights Law Network, in collaboration with ANHAD, organised an Independent People’s Tribunal on February 20 and 21, 2010 at Srinagar, Kashmir.

The tribunal was organised with an aim to provide a platform to the victims of the ongoing armed conflict. The tribunal witnessed testimonies from all sections of Kashmiri society, including victims, their family members, social activists, journalists and academicians. In all, 37 testimonies came to be recorded during the two-day-long tribunal. Victims and their family members narrated their stories of suffering which they have experienced for the past two decades. The idea behind conducting such an event was to highlight the sufferings of all such victims and to formulate certain suggestions/ recommendations in order to minimise the use of force against the common man in the name of national security by the security agencies.

Summary

The tribunal heard testimonies from about 37 victims and their kin and we have also had testimonies/statements from journalists and members of civil society.

It is clear that there is a sense of suffering and injustice writ large on the faces of everyone who made their statements before the tribunal. We had made it clear that we are not in any way linked with the official institutions or authority and yet so many of them gave vent to their feelings in their physical and emotional state, which only strengthens our opinion that there is substantial truth in those allegations.

It cannot be gainsaid that the Armed Forces (Special Powers) Act 1958 has been in force for nearly two decades in this state. This act has been misused and is being misused wherever it is made applicable (Manipur, for example). Therefore if we take this situation into account, this draconian law has undoubtedly facilitated grave human rights abuses including “disappearances” by the very nature of the power bestowed on the armed forces.

Any abuse of powers by the armed forces is a criminal offence. It should promptly be investigated by an agency independent of the armed forces, followed by impartial prosecution. The testimonies of all witnesses clearly establish that there has been no satisfactory investigation by any agency or authority in the state, leave alone any prosecution. On the other hand, we get an impression that all institutions of the state, the executive, the legislature, the human rights commission and to a certain extent even the judiciary have failed to do justice to the victims of “disappearances” and other human rights violations.

The United Nations General Assembly in 2006 has unanimously adopted the International Convention for the Protection of All Persons from Enforced Disappearance. Earlier, there was the UN declaration to the above effect (December 1992). Article 2 of the declaration says that, “the prohibition” of “disappearances” is absolute and no state can find an excuse. Article 7 says: “no circumstances, whether a threat of war, internal political instability or any other public emergency, may be invoked to justify” these acts of violation. Hence it is not open to the state to resort to enforced disappearances, which would include all custodial deaths, on the ground of any threat to internal security or external safety and stability. It is here the state’s liability becomes absolute and we should have no hesitation in making these observations.

We have the testimony of Ms Parveena Ahangar, who is the chairperson of the Association of Parents of Disappeared Persons (APDP), which clearly establishes that 8-10,000 persons have disappeared from about 1989. Incidentally, we may point out that during the period 1984-1994, during the agitation for Khalistan in Punjab, there had been similar disappearances and recently a report based on the State’s Human Rights Commission shows that over 2,059 bodies were identified in Amritsar district and still over 1,000 bodies are lying there in the district and there are a large number of skeletons in other districts. Moreover, internationally, disappearances and “custodial deaths” fall within the definition of “torture”. Prohibition of torture and ill treatment is underlined by its non-derogable status in human rights laws. No state can justify such an act.

General findings

  1. Various instances of the security forces’ crimes have been brought to our notice. These are violations against the Geneva Conventions (Common Articles 2/3), the International Covenant on Civil and Political Rights, the Indian Penal Code and the civil law of the country. The police/paramilitary and surrendered militants have flouted Indian laws and the rules of war. As a consequence, large numbers of civilians have died, including women and children. Women, including young girls, have been harassed, raped and gang-raped and children in their early teens shot.
  2. The judicial machinery has barely functioned. Despite the stern report of the Bijbehara magisterial inquiry, recommending the severest action against the BSF (Border Security Force) officers and jawans, nothing was done. A number of cases filed in the district and high courts have been pending for years and there are numerous cases of lack of judicial action taken in terms of awarding compensation and instructing the security forces to produce the disappeared and so forth.The tribunal heard repeated examples of FIRs (first information reports) filed by the families that were distorted by the police to accuse the victims. Counter-FIRs have also been lodged by the police… Under the pretext of translating FIRs from Urdu into English, the police have completely distorted the complaints made in the original FIR. One such case with evidence was produced before the Independent People’s Tribunal.
  3. The State Human Rights Commission has no power to investigate paramilitary and military excesses though it does have the power to request investigation reports of the inquiry by the paramilitary and the military forces. The SHRC seems to have failed to exercise its powers proactively to provide justice to the victims. The general trend is that the state as well as the central government ignores the recommendations made by this commission.
  4. Rape: The worst case of mass rape was heard by the women jurists from the testimonies of women from Kunan Poshpora, who talked about the night of February 23, 1991 when the army came to their village, isolated the men and gang-raped at least 23 women of all ages from 14 to even a 100-year-old woman. The rape took place in front of their young children. There was brutal impact on their bodies and since then, they have suffered physical and mental trauma for years. They have been socially discriminated and ostracised, landing them into a traumatic state of mind that has been permanent. This is the grossest of human rights violations.
  5. Throughout the conflict people have been maimed and disabled due to the indiscriminate firing by security forces during even non-violent protests. People have also been disabled during interrogations where torture was used. We heard the testimonies from Bijbehara where forces had indiscriminately opened fire on peaceful demonstrators in 1993. Many injured persons have been disabled for life and have suffered mentally, physically and financially. Hardly any steps have been taken for their rehabilitation.

The testimonies we heard from disabled persons revealed that they were totally shocked and shattered. The disabled deposed before us to say that they could bear with the aftermath of physical injury but not with the mental pain, agony and trauma that make them feel that they die several deaths every day rather than living even once…

Custodial killings

There have been a large number of custodial killings since the conflict began. The pattern in most cases is similar even though the perpetrators may be from different forces serving the Indian state. The cases cited represent the dominant form of this method of violation of human rights. We are citing illustrative testimonies of victims, relatives of victims and others with first-hand information to illustrate our findings.

Testimonies

Masooda Parveen, representing the late Advocate Ghulam Mohiddin Regoo

Relation with victim: Wife

Resident: Pampore

District: Pulwama

“I am a mother of two. At the time of the incident my husband was a practising lawyer. On February 1, 1998, at around 9 o’clock, my husband had just returned from the mosque after offering the last prayer of the day. Two renegade militants – Bashir Ahmad and Abdul Khaliq – entered our house. Bashir’s face was partially covered with a handkerchief. He caught hold of my husband’s collar and alleged that a militant – Arshid Ahmad Ganaie – was hiding in our house. In fact, Arshid was already in their custody, in a car parked outside our house. The two people took my husband with them and a few days later his mauled dead body was returned to us. Major Poniyal of the Jat Regiment stationed at Laidpora, Pulwama, was involved in bringing all of this about. At the time of handing his body over to me they also gave me the relevant documents and the copy of the FIR.

“I approached the government authorities in order that the culprits are brought to book but to no avail. The district administration had offered me a job but later declined to acknowledge they had ever done that. When I contacted the local MLA regarding the matter, he avoided me. I approached the then chief minister, Mr Farooq Abdullah, but he shooed me away, stating that I was the wife of a ‘traitor’. My son, who is an agriculture graduate, has been constantly denied a passport by the state. I myself wanted to take the case of my husband’s gruesome murder to a UN body but was also denied a passport. I am now contesting my case in the Supreme Court with the hope that we get justice and my sons can travel abroad for their advanced studies. When the Supreme Court called for the records of our case from the police, they stated that they had lost the file. In the meantime, our harassment by the state continues as has been the case since my husband’s brutal murder.”

Gh Qadir Pandit

The case of Gh Qadir Pandit is a striking instance of the state of the judiciary and police. Even after the sessions court concluded the “custodial death”, which was reported to the Jammu and Kashmir high court, the high court directed the concerned sessions court to start investigations after three years of their filing the case. The police refused to file an FIR on the ground of jurisdictional ambiguity. The victim’s family then filed an application in the high court seeking directions to specify the police station under whose jurisdiction the case fell but no orders were passed. Mr Pandit’s brother’s comment that he was “…so disillusioned with the justice delivery system in Kashmir that I thought it best not to follow up on the case any further” sums up a common criticism of the judicial system, the SHRC and the police.

Gh Qadir Teli

Gh Qadir Teli, whose son was a victim, was himself severely tortured and stripped naked by the 21 RR (21 Rashtriya Rifles). He also filed petitions in the Jammu and Kashmir high court and SHRC about his missing son but nothing concrete happened.

“My son was a 17-year-old school dropout and had started working on our farm. He had three elder sisters and was the only substantial source of income for our family. I got him married in 2006, in district Baramulla. On the fateful day of November 25, 2006 he was not feeling well and had gone to see a doctor, Dr Habibullah Mattoo, in Sopore. While he had been waiting for his turn at the clinic, a fellow villager had called him on his mobile phone, which is when he had confirmed his location. At around 1 o’clock in the afternoon I saw a huge crowd outside my house. Some people standing close by advised me against going home at that time, as there the army had raided my house and were searching it. Disturbed by the gravity of the situation, I thought of calling my son. I went to a phone booth to make the call but his cellphone was switched off.

“During this time the rest of my family inside the house was being harassed by the army. Finally, I reached home at around 9:30 in the evening but my son was nowhere to be seen. For the next three days there was no news of him. I registered a missing report at the police station on December 8, 2006. However, the army – led by some DSP (deputy superintendent of police) Tickoo – raided my house soon after and asked for the original copy of the report, which I had to hand him out of fear. Fortunately enough, I had already made photocopies. I then returned to the concerned police station and lodged a fresh complaint.

“A few days following this the army came looking for me but somehow I managed to get away. But on another occasion the 21 RR raided my house again and took me into custody. They then took me to Handwara where I was severely tortured while being stripped naked. You can imagine what I might have gone through considering it was the body of an old man they were inflicting inhuman treatment on. They were trying to coerce me to accept that my son was a militant and that I had ammunition in my possession but I didn’t succumb. When they released me, I filed an application with the district magistrate reiterating that I had been subjected to illegal detention and torture and that the whereabouts of my son were unknown. I also filed petitions in the Jammu and Kashmir high court and the SHRC but nothing has come out of them.”

Enforced disappearance

One of the most harrowing consequences of the armed conflict in Kashmir is that people in detention go missing. The majority of missing persons are men, which leaves a large number of women awaiting news that would decide their fate, living lives of half-widows. A state like this results in a severe identity crisis amongst the women – with the immense agony of not being sure whether they are still married or widowed.

Enforced disappearances in Kashmir started in 1989 following the outbreak of armed conflict. The state has seen heavy deployment of security forces (more than 6,00,000 – the highest number of army personnel during peacetime anywhere in the world) since.

In international human rights law, disappearances at the hands of the state have been codified as enforced or forced disappearances. The Rome Statute establishing the International Criminal Court defines enforced disappearance as a crime against humanity. However, the police do not entertain missing reports with regard to these persons.

The Association of Parents of Disappeared Persons, an organisation founded by concerned persons in Kashmir, has been demanding the whereabouts of people who have been subjected to enforced custodial disappearance by various security agencies, troops and police – mostly since the break out of armed rebellion in 1988. Even though the association continues to highlight their sufferings and their demands, their genuine pleas and grievances are yet to strike the conscience of the so-called elected representatives of the people.

According to the International Convention on Enforced Disappearances, no exceptional circumstances whatsoever – whether a state of war, a threat of war, internal political instability or any other public emergency – may be invoked as a justification for enforced disappearance and the state is under an obligation to investigate acts of enforced disappearance.

Testimonies

Zahoor Ahmad Mir, representing Ali Mohd Mir

Relation with victim: Son

Resident: Nishat

District: Srinagar

“My father, namely Ali Muhammad, was killed by Ghulam Ahmad alias Papa Kishtwari on June 26, 1996. I filed a case in the high court in the year 2006. I also filed a case in the SHRC in the year 2007. After I got the case registered, it pressurised the police and only then could I get an FIR lodged against Papa Kishtwari in the concerned police station. Papa Kishtwari is a surrendered militant and is now a government-sponsored person. He even won uncontested elections. Papa Kishtwari is believed to have committed 150 murders but only 26 are registered against him. His accomplices have been left free. I want my father’s dead body. Papa Kishtwari is in jail because of me but he is not being punished. I want justice.”

Abdul Rashid Beigh, representing Fayaz Ahmad Beigh

Relation with victim: Father

Resident: Khajapora, Nowshera

District: Srinagar

“My son, namely Fayaz Ahmad Beigh, was working as a photographer in the department of Central Asian studies at the University of Kashmir. He was arrested during his duty hours by HR Parihar, SP (superintendent of police), STF (Special Task Force), at Awantipora on September 6, 1997 and was taken to some unknown destination along with his motorcycle. When my son didn’t return, I set to locate his whereabouts. I approached STF and SOG (Special Operations Group) officials through the SP, operations, Awantipora, who, after taking a lot of time, admitted my son’s detention. But my efforts brought no results. I haven’t seen my son till date. The STF agency concocted a baseless story that my son had escaped from custody.

“The SHO (station house officer), Soura, namely Abdul Rashid Khan alias Rashid Billa, is hand in glove with the criminals. He has given a legal cover to my son’s disappearance and has created false evidence by registering a false case against him. I approached the then home minister, Ali Mohammad Sagar, to seek his help in order to locate my son. He ordered a CID inquiry. The IG (inspector-general), CID, submitted its report stating that Fayaz Ahmad Beigh was arrested from the university campus and the story put forth by the STF was proved false.

“I approached the SHRC and registered a complaint (File No. SHRC /2008/09) in December 1997. The complaint was disposed of on April 3, 2000. The SHRC in its order rejected the STF/police story of Fayaz Ahmad’s escape from custody as ridiculous and recommended a compensation of Rs five lakh. The SHRC also directed the registration of a criminal case against SP Parihar and his subordinates. Unfortunately, the then state government did not pay any heed to the recommendations of the SHRC and left the case virtually unattended for years together. In the meanwhile, we also filed a habeas corpus petition (HCP No. 1411/97) in the high court wherein we prayed to show the case of detention of my son and the authority and law under which my son was detained. However, we were made to withdraw the writ petition on the ground that the case was already pending with the SHRC.

“Later on, in order to get the recommendations of the SHRC implemented, I filed a writ petition in the high court (OWP No. 263/OWP-2002). The hon’ble high court in its subsequent decision upheld the recommendations of the SHRC and directed the state government to execute the recommendations given by the SHRC. It is painful to note that the government has slept over the matter and shown no response even to the high court’s decision. In January 2004 the home department and SP, operations, HR Parihar, filed an appeal against the order passed by the high court division bench, Srinagar, on admission of the LPA (182/03). The hon’ble chief justice directed the trial court to pass an appropriate order in session of challan (239/97). On our application, the trial court, Srinagar, passed an order on December 12, 2007 that criminal proceedings cannot be started against a dead person; therefore the challan has been consigned to records after due compliance.

“The case is still pending before the division bench.”

Rape cases

Rape is a particularly heinous crime. It has been used as a method of humiliating an individual and community and destroying their honour. Since the stigma never goes away, the victim is shunned and shamed for life.

Testimonies from Kunan Poshpora village

Kunan Poshpora mass rape: On the intervening night of February 23 and 24, 1991 about 23 women from Kunan Poshpora village in the border district of Kupwara were raped by the troops of the 4 Rajputana Rifles during a search operation. As per reports, at around 11:00 p.m. army personnel in large numbers entered the village. This was followed by the segregation of women from men. While the men were asked to assemble in a village field, the women were ordered to stay put inside the houses. This is when the army men barged into the households and gang rapes followed. Reportedly, women from ages 13-80 were raped. One such woman, who is now 120 years of age, stated that she was stripped naked, dragged out of her house into the snow-filled front yard and gang-raped. A police investigation into the incident never occurred.

Bakthi (victim)

Wife of Mohd Siddiq

Resident: Kunan Poshpora

District: Kupwara

“On the night of February 23, 1991 our village was cordoned off by a large group of drunken army personnel. The next morning I came to know that other women from the village had similarly suffered. At this point the menfolk who had been assembled in the village field during the search operation the preceding night were being asked by the army to raise their hands in agreement and say aloud that no excesses had been committed in the village, and were being filmed while doing so. This is when we womenfolk went over to the field in half-naked condition to make it known to the men what had happened to us. On seeing us, the men lost their cool and refused to accept what they were being ordered to say.

“On getting home, the men too shared their stories of torture that had been inflicted on them by the army. Learning of the brutality that had been meted out to the women in the village, the men tried to file FIRs, which was a daunting task in context of the fear of reprisal by the concerned army men. There was no primary health centre nearby where we womenfolk could have got ourselves examined in order to collect medical evidence.

“At the time of the incident I was 30 years old. Within a year of the incident four women from our village – Saja, Mehtaba, Zarifa and Jana – succumbed to death stemming from the mental trauma and disgrace they had to put up with. These women had also been struggling with physical ailments subsequent to the incident. The self-humiliation resulting from our traumatic experience didn’t allow us to visit any of our relatives from other villages, nor did they pay us a visit. We also had to take our children out of school for fear of their being apprehended and tortured by the army. My son and many young men from the village grew up harbouring vengeance in their hearts for what had been done to the women in their families.

“Following the incident of mass rape in the village, proposals of marriage stopped coming from outside our village, since the news of the rapes had become common knowledge all around the valley. As a consequence, marriages between victim relatives from within our village started to take place. Many people came to our village for documenting or reporting the wrong that was done to us and we shared our stories with them yet justice has eluded us to date. Now we are disillusioned and personally I find it despairing and difficult to revisit that harrowing ordeal of ours by narrating it to people time and again. At the same time, the mental and physical pain suffered that night and after continues to haunt me. My old husband has died and now it is my last wish that the guilty army personnel be punished. I had lodged an FIR bearing No. RI/1387/83 under the Ranbir Penal Code, Sections 376, 452 and 342, at the Trehgam police station on March 2, 1991. However, nothing came of it.”

Faba (victim)

Resident: Kunan Poshpora

District: Kupwara

“I was approximately 25 years old and a mother of two at the time of the incident. At around 11:00 p.m. on February 23, army personnel barged into our house. They caught hold of my husband and were taking him away when I insisted on accompanying him. My husband stopped me by saying that I should wait for him at home, as he would be back in some time and there was nothing to worry. Therefore I stayed back and bolted the doors of my house. After a while, there was a loud knock at the door. On noticing that my house had been surrounded by the army, I did not unlock the door. At this, eight to 10 army men broke the door open, barged in and raped me and my unmarried sister. My sister is now suffering from post-traumatic stress disorder. With great difficulty we were eventually able to get my sister married to someone from the same village, whose family had suffered likewise. Post-rape, she even delivered a baby who did not survive. Within two to three months of the incident, a lady doctor was called into the village for conducting abortions on women who had conceived as a result of the rapes. My son was five to six years old at the time of the incident and he now faintly remembers what had happened to me and his aunt that night.

“The women from the village tried to preserve their clothes for some time in order to substantiate rape and showed them to the media or any other authorities who came to the village for investigating/reporting rape. Currently those clothes are in police custody.”

The judges asked the victims if any magisterial inquiry had taken place after the incident, as reports have suggested. The victims replied by saying that there were many people who came and asked questions after the incident; however, they do not know of their identities. In an aside, the victims collectively testified that they refrained from discussing the rapes with or in presence of their sons, apprehensive that they might take matters into their own hands. They added that on the next morning after the rapes a local resident, Abdul Ghani Dar, who was also a police constable, called a lady doctor to conduct check-ups of the victim women. (The said police constable’s cousin was also a victim and she had later conceived as a result of the rape. The foetus was later aborted.)

The said doctor conducted a medical check-up of all the women who had been raped and their clothes were taken to Trehgam police station later on. The doctor medically cleansed all of the raped women in order to prevent pregnancies. The victims stated that the police constable had taken the initiative of getting this done in order to save the village from humiliation. On February 17, 1993 an unidentified person killed the said policeman. His parents are still alive but his mother lost mobility and his father became a patient of depression after their son died.

The victims reported that women from Kunan Poshpora faced social rejection for many years after the incident; to the extent that they were not allowed seats in public transport by fellow passengers. Instead, they were made to sit on the floor, away from the others. On being asked by the judges what they expected from the tribunal, the victims replied in unison that they wanted the perpetrators to be punished.

The then chief justice of the Jammu and Kashmir high court, Justice Mufti Baha-ud-din, led a fact-finding mission to the village and concluded that normal investigative procedures were blatantly disregarded in this case. A Press Council of India investigation followed, which called the allegations of these women “a well-fabricated bundle of lies”. No further investigations were conducted and the matter remains unredressed till date. The government’s handling of the case was widely criticised in national and international circles, including international human rights organisations like Human Rights Watch and Amnesty International.

If such an incident had occurred in the rest of India, there would have been a sustained public outcry and agitation. The judiciary would also have responded.

Conclusion

It is clear that the rule of law does not operate as laid down in the statute books. Talks between Kashmiri leaders, including the separatists and the central government, have not led to any positive outcome. In fact, it would appear that the real mass discourse is a reflection of the mass alienation in the Kashmir valley. Demonstrations and street protests often resulting in clashes and stone-throwing have regularly led to civilian deaths fuelling another cycle of protest. The government’s focus is on containing the armed militants but not on having a sustained dialogue with the population and its leaders. The numbers of militants killed as indices of peace in the valley is misleading. The crucial indicator of mass alienation is not the infiltration of militants but resistance by the people.

Any path for a solution of the Jammu and Kashmir problem must squarely and frontally deal with this mass alienation of the people and directly confront its causes.

Recommendations

  1. The controversial Armed Forces (Special Powers) Act 1958 should be withdrawn from Jammu and Kashmir. The Jammu and Kashmir Public Safety Act 1978 and other anti-terror laws should correspond to the provisions of the International Covenant on Civil and Political Rights which India has ratified. It should be noted that India has been repeatedly criticised in the UN Human Rights Committee for the existence of the Armed Forces (Special Powers) Act which violates, crucially, several articles of the ICCPR.
  2. Keeping in view the large concentration of military and paramilitary forces in the state of Jammu and Kashmir, which is disproportionate to the civilian population and is also making civil administration ineffective in many matters, the government of India should take immediate steps to minimise the number of these forces in order to bring relief to the civilian population.
  3. We recommend the establishment of a special judicial authority making an independent and thorough inquiry into all allegations of human rights violations, including disappearances, custodial killings, rape, torture, including torture of prisoners, fake encounters, and all other cases related to excesses by security forces.
  4. Every case of killing by police and security forces in situations like protests, demonstrations, riots, etc should be followed by a judicial inquiry into the police/security forces firing/actions, followed by proper, time-bound administrative action. It is made clear that the police have no licence to kill anyone in any situation unless they can justify this action under Section 100 of the Indian Penal Code, which has to be done in a judicial procedure.
  5. Provide proper rehabilitation to families of deceased, injured and traumatised victims, especially the raped.
  6. Compensation as interim relief should be arranged promptly. Compensation should be adequate and purposeful. Compensation should be for both injury to person as well as for damage to property i.e. houses, etc.
  7. The state should immediately establish fast track courts for the purpose of trying the large number of cases which are pending.
  8. Both state as well as central governments should take immediate steps to address the sufferings of detainees who are languishing in various jails and interrogation centres in and outside the state of Jammu and Kashmir and have been complaining of torture and inhuman treatment inside the jails.
  9. The state should provide witness protection, since many of the witnesses are being threatened.
  10. It is necessary that the government should first establish a “Grievance Cell” in every town where armed forces are deployed. These cells will receive complaints regarding allegations of missing persons or abuse of law by security/armed forces, make prompt inquiries and furnish information to the complainants. The cell should have the full authority to inspect and call for every record maintained by the security forces or by the local authorities.
  11. As a confidence building measure, the government should hold talks with the Jammu and Kashmir representatives, organisations of men and women, in Srinagar. Currently talks on these matters are held in Delhi, including talks with Pakistan. The Kashmiris find themselves out of the dialogue process, as no talks are held in Srinagar.
  • Justice H. Suresh, former Judge, Bombay High Court
  • Justice Malay Sengupta, former Chief Justice, Sikkim High Court
  • Justice A. Barua, former Judge, Calcutta High Court
  • Professor Kamal Mitra Chenoy, Jawaharlal Nehru University, Delhi
  • Dr Nusrat Andrabi, former Principal, Government Women’s College, Srinagar
  • Professor Anuradha Chenoy, Jawaharlal Nehru University, Delhi
  • Shujaat Bukhari, senior Journalist, Srinagar n

The Independent People’s Tribunal on Human Rights Violations in Kashmir, organised by the Human Rights Law Network, HRLN, and ANHAD, was held in Srinagar on February 20-21, 2010.

Archived from Communalism Combat, July-August 2010, Anniversary Issue (17th).Year 17, No.153 – Cover Story 3

Introduction

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The commission and its task

On October 29, 2004 the Government of India resolved to constitute a national commission consisting of (i) a chairman (ii) three members – one of them being an expert in Constitution and law – and (iii) a member-secretary with administrative experience, to be entrusted  with the following terms of reference:

(a) to suggest criteria for identification of socially and economically backward sections among religious and linguistic minorities;
(b) to recommend measures for welfare of socially and economically backward sections among religious and linguistic minorities, including reservation in education and government employment; and
(c) to suggest the necessary constitutional, legal and administrative modalities required for the implementation of its recommendations. The commission was asked to present a report on its deliberations and recommendations within a period of
six months from the date of assumption of charge by the chairman.

2. The actual composition of the commission was notified nearly five months later, in March 2005, by the union ministry of social justice and empowerment.

3. On March 21, 2005 the following took charge as chairman and members of the commission:
(a) Justice Ranganath Misra: Former Chief Justice of India and Ex-Chairman, National Human Rights Commission … ( Chairman )
(b) Professor Dr Tahir Mahmood: Former Chairman, National Commission for Minorities and Ex-Dean, Faculty of Law, Delhi University
(c) Dr Anil Wilson: Principal, St Stephen’s College, Delhi
(d) Dr Mohinder Singh: Director, National Institute of Punjab Studies, Delhi

4. The commission held its first meeting on the same date with Dr Sundeep Khanna, additional secretary in the union ministry of social justice and empowerment, as its acting secretary. At this meeting the commission assumed for itself the abbreviation NCRLM – National
Commission for Religious and Linguistic Minorities – and charted out its future programme of action.

5. The commission was allotted an office at the Jawaharlal Nehru Stadium in Delhi and sanctioned a secretariat of 40 posts in various cadres (later increased to 44), which were gradually filled in the coming months.

6. Mrs Asha Das, a former secretary to the Government of India, was later appointed as the member-secretary of the commission and assumed charge of her office on May 10, 2005.

7. After nearly five months of its work, the commission’s terms of reference were modified so as to add the following to its original terms of reference:  To give its recommendations on the issues raised in writ petitions 180/04 and 94/05, filed in the Supreme Court and in certain high courts, relating to para 3 of the Constitution (Scheduled Castes) Order 1950 in the context of ceiling of 50 per cent on reservations as also the modalities of inclusion in the list of Scheduled Castes.

8. In view of the extensive work required to be done by the commission to answer its various terms of reference, original and extended, its tenure was periodically extended – finally up to May 15, 2007.

Procedure adopted
1. As the commission was authorised by the government to adopt its own procedure, it was decided to gradually follow an action programme comprising of the following:
(a) assessments of data available through Census reports, National Sample Survey Organisation survey reports and National Family Health Survey and other special agencies;
(b) obtaining people’s views and public opinion on each of its terms of reference through a multilingual press notification;
(c) collecting necessary information, through personal meetings and questionnaires, from the ministries and departments of the union government and from the governments of the states and union territories;
(d) meeting representatives of and collecting relevant information from the central and state-level governmental and parastatal commissions, corporations, federations, boards and organisations, etc especially
working for the minorities, like the central and state Minorities Commissions, National Minorities Development and Finance Corporation and its state channelising agencies, Central Wakf Council and state
Wakf Boards, etc.
(e) collecting necessary information from major outfits, organisations, associations and institutions of each of the minority communities;
(f) having discussions with and collecting relevant information from public sector undertakings, financial institutions, major banks and select NGOs;
(g) visiting the states and union territories to interact with members and officers of the local governments and the local minority community leaders and representatives;
(h) inviting researchers, subject experts, academics, and representatives and spokespersons of various minorities, etc – individually and in groups – for a discussion of issues relevant to the commission’s work;
(i) examining the old and recent reports of bodies and panels like Kaka Kalelkar Commission, Mandal Commission, Backward Classes Commission, Gopal Singh Panel, etc;
(j) sponsoring seminars, symposia and workshops on the issues involved, to be organised by outside institutions with a wide participation of subject experts, academics, researchers and fieldworkers; and
(k) procuring special studies of select topics relevant to the commission’s work by assigning these to individual experts and researchers.

Archived from Communalism Combat, April 2010 Year 16    No.150, Chapter 1, Indtroduction

Constitutional and Legislative Provisions Regarding the Minorities

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Who are the minorities?

1. The Constitution of India uses the word ‘minority’ or its plural form in some Articles – 29 to 30 and 350A to 350B – but does not define it anywhere. Article 29 has the word “minorities” in its marginal heading but speaks of “any sections of citizens… having a distinct language, script or culture”. This may be a whole community generally seen as a minority or a group within a majority community. Article 30 speaks specifically of two categories of minorities – religious and linguistic. The remaining two Articles – 350A and 350B – relate to linguistic minorities only.

2. In common parlance, the expression “minority” means a group comprising less than half of the population and differing from others, especially the predominant section, in race, religion, traditions and culture, language, etc. The Oxford Dictionary defines ‘Minority’ as a smaller number or part; a number or part representing less than half of the whole; a relatively small group of people, differing from others in race, religion, language or political persuasion”. A special Subcommittee on the Protection of Minority Rights appointed by the United Nations Human Rights Commission in 1946 defined the ‘minority’ as those “non-dominant groups in a population which possess a wish to preserve stable ethnic, religious and linguistic traditions or characteristics markedly different from those of the rest of the population.”

3. As regards religious minorities at the national level in India, all those who profess a religion other than Hindu are considered minorities, since over 80 per cent [of the] population of the country professes the Hindu religion. At the national level, Muslims are the largest minority. Other minorities are much smaller in size. Next to the Muslims are the Christians (2.34 per cent) and Sikhs (1.9 per cent); while all the other religious groups are still smaller. As regards linguistic minorities, there is no majority at the national level and the minority status is to be essentially decided at the state/union territory level. At the state/union territory level – which is quite important in a federal structure like ours – the Muslims are the majority in the state of Jammu and Kashmir and the union territory of Lakshadweep. In the states of Meghalaya, Mizoram and Nagaland, Christians constitute the majority. Sikhs are the majority community in the state of Punjab. No other religious community among the minorities is a majority in any other state/UT.

4. The National Commission for Minorities Act 1992 says that “Minority, for the purpose of the act, means a community notified as such by the central government” – Section 2(7). Acting under this provision, on October 23, 1993 the central government notified the Muslim, Christian, Sikh, Buddhist and Parsi (Zoroastrian) communities to be regarded as “minorities” for the purpose of this act.

5. The Supreme Court in TMA Pai Foundation & Ors vs State of Karnataka & Ors (2002) has held that for the purpose of Article 30 a minority, whether linguistic or religious, is determinable with reference to a state and not by taking into consideration the population of the country as a whole. Incidentally, ‘scheduled castes’ and ‘scheduled tribes’ are also to be identified at the state/UT level. In terms of Articles 341 to 342 of the Constitution, castes, races or tribes or parts of or groups within castes, races or tribes are to be notified as scheduled castes or scheduled tribes in relation to the state or union territory, as the case may be.

6. The state Minorities Commission Acts usually empower the local governments to notify the minorities e.g. Bihar Minorities Commission Act 1991, Section 2(c); Karnataka Minorities Commission Act 1994, Section 2(d); Uttar Pradesh Minorities Commission Act 1994, Section 2(d); West Bengal Minorities Commission Act 1996, Section 2(c); Andhra Pradesh Minorities Commission Act 1998, Section 2(d). Similar acts of Madhya Pradesh (1996) and Delhi (1999) however say that government’s notification issued under the National Commission for Minorities Act 1992 will apply in this regard – Madhya Pradesh Act 1996, Section 2(c); Delhi Act 1999, Section 2(g); Section 2(d). In several states (e.g. Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Uttar Pradesh and Uttarakhand), Jains have been recognised as a minority. The Jain community approached the Supreme Court seeking a direction to the central government for a similar recognition at the national level and their demand was supported by the National Commission for Minorities. But the Supreme Court did not issue the desired direction, leaving it to the central government to decide the issue (Bal Patil case, 2005). In a later ruling however, another bench of the Supreme Court upheld the Uttar Pradesh law recognising Jains as a minority (Bal Vidya case, 2006).

Rights of minorities

7. The Universal Declaration of Human Rights 1948 and its two International Covenants of 1966 declare that “all human beings are equal in dignity and rights” and prohibit all kinds of discrimination – racial, religious, etc. The UN Declaration against All Forms of Religious Discrimination and Intolerance 1981 outlaws all kinds of religion-based discrimination. The UN Declaration on the Rights of Minorities 1992 enjoins the states to protect the existence and identity of minorities within their respective territories and encourage conditions for promotion of that identity; ensure that persons belonging to minorities fully and effectively exercise human rights and fundamental freedoms with full equality and without any discrimination; create favourable conditions to enable minorities to express their characteristics and develop their culture, language, religion, traditions and customs; plan and implement national policy and programmes with due regard to the legitimate interests of minorities; etc.

8. In India, Articles 15 and 16 of the Constitution prohibit the state from making any discrimination on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them either generally i.e. every kind of state action in relation to citizens (Article 15) or in matters relating to employment or appointment to any office under the state (Article 16). However, the provisions of these two articles do take adequate cognisance of the fact that there had been a wide disparity in the social and educational status of different sections of a largely caste-based, tradition-bound society with large-scale poverty and illiteracy. Obviously, an absolute equality among all sections of the people regardless of specific handicaps would have resulted in perpetuation of those handicaps. There can be equality only among equals. Equality means relative equality and not absolute equality. Therefore the Constitution permits positive discrimination in favour of the weak, the disadvantaged and the backward. It admits discrimination with reasons but prohibits discrimination without reason. Discrimination with reasons entails rational classification having nexus with constitutionally permissible objects. Article 15 permits the state to make “any special provisions” for women, children, “any socially and educationally backward class of citizens” and scheduled castes and scheduled tribes. Article 15 has recently been amended by the Constitution (93rd Amendment) Act 2005 to empower the state to make special provisions, by law, for admission of socially and educationally backward classes of citizens or scheduled castes/tribes to educational institutions, including private educational institutions, whether aided or unaided by the state, other than minority educational institutions. Article 16 too has an enabling provision that permits the state for making provisions for the reservation in appointments of posts in favour of “any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state”. Notably, while Article 15 speaks of “any socially and educationally backward class of citizens” and the scheduled castes and scheduled tribes without qualifying backwardness with social and educational attributes and without a special reference to scheduled castes/scheduled tribes, Article16 speaks of “any backward class of citizens”.

9. The words ‘class’ and ‘caste’ are not synonymous expressions and do not carry the same meaning. While Articles 15 and 16 empower the state to make special provisions for backward “classes”, they prohibit discrimination only on the ground of ‘caste’ or ‘religion’. In other words, positive discrimination on the ground of caste or religion coupled with other grounds such as social and educational backwardness is constitutionally permissible and therefore, under a given circumstance, it may be possible to treat a caste or religious group as a “class”. Therefore even though Article 15 does not mention minorities in specific terms, minorities who are socially and educationally backward are clearly within the ambit of the term “any socially and educationally backward classes” in Article 15 and “any backward class” in Article 16. Indeed the central government and state governments have included sections of religious minorities in the list of Backward Classes and have provided for reservation for them. The Supreme Court, in Indira Sawhney & Ors vs Union of India, has held that an entire community can be treated as a ‘class’ based on its social and educational backwardness. The court noted that the government of Karnataka, based on an extensive survey conducted by them, had identified the entire Muslim community inhabiting that state as a backward class and have provided for reservations for them. The expression ‘backward classes’ is religion-neutral and not linked with caste and may well include any caste or religious community which as a class suffered from social and educational backwardness.

10. Though economic backwardness is one of the most important – or perhaps the single most important – reasons responsible for social and educational backwardness alone of a class, the Constitution does not specifically refer to it in Articles 15 and 16. In the Indira Sawhney case, the Supreme Court had observed: “It is therefore clear that economic criterion by itself will not identify the backward classes under Article 16(4). The economic backwardness of the backward classes under Article 16(4) has to be on account of their social and educational backwardness. Hence no reservation of posts in services under the state, based exclusively on economic criterion, would be valid under clause (1) of Article 16 of the Constitution.”

The Universal Declaration of Human Rights 1948 and its two International Covenants of 1966 declare that “all human beings are equal in dignity and rights” and prohibit all kinds of discrimination – racial, religious, etc

11. It is however notable that in the chapter of the Constitution relating to Directive Principles of State Policy, Article 46 mandates the state to “promote with special care the educational and economic interests of the weaker sections of the people… and… protect them from social injustice and all forms of exploitation.” This article refers to scheduled castes/scheduled tribes “in particular” but does not restrict to them the scope of “weaker sections of the society”.

12. Article 340 of the Constitution empowered the president to appoint a commission “to investigate the conditions of socially and educationally backward classes” but did not make it mandatory.
 

Other constitutional safeguards

13. The other measures of protection and safeguard provided by the Constitution in Part III or elsewhere having a bearing on the status and rights of minorities are:
(i) Freedom of conscience and free profession, practice and propagation of religion (Article 25);
(ii) Freedom to manage religious affairs (Article 26);
(iii) Freedom as to payment of taxes for promotion of any particular religion (Article 27);
(iv) Freedom as to attendance at religious instruction or religious worship in certain educational institutions (Article 28);
(v) Special provision relating to language spoken by a section of the population of a state (Article 347);
(vi) Language to be used in representations for redress of grievances (Article 350);
(vii) Facilities for instruction in mother tongue at primary stage (Article 350A);
(viii) Special officer for linguistic minorities (Article 350B).

Article 29
14. Articles 29 and 30 deal with cultural and educational rights of minorities. Article 29 provides that:
(1) any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same; and
(2) no citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them.
15. Unlike Article 30, the text of Article 29 does not specifically refer to minorities though it is quite obvious that the article is intended to protect and preserve the cultural and linguistic identity of the minorities. However, its scope is not necessarily confined to minorities. The protection of Article 29 is available to “any section of the citizens residing in the territory of India” and this may as well include the majority. However, India is a colourful conglomeration of numerous races, religions, sects, languages, scripts, culture and traditions. The minorities, whether based on religion or language, are quite understandably keen on preserving and propagating their religious, cultural and linguistic identity and heritage. Article 29 guarantees exactly that. There may appear to be some overlapping in language and expressions employed in Articles 15(1) and 29(2). However, Article 15(1) contains a general prohibition on discrimination by the state against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them whereas Article 29(2) affords protection against a particular species of state action, viz admission into educational institutions maintained by the state or receiving aid out of state funds.

Article 30
16. Article 30 is a minority-specific provision that protects the right of minorities to establish and administer educational institutions. It provides that “all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice”. Clause (1A) of Article 30, which was inserted by the Constitution (44th Amendment) Act 1978, provides that “in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the state shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause”. Article 30 further provides that “the state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language”.
17. It would be worthwhile to note that minority educational institutions referred to in clause (1) of Article 30 have been kept out of the purview of Article 15(4) of the Constitution which empowers the state to make provisions by law for the advancement of any socially and educationally backward classes of citizens or scheduled castes/scheduled tribes in regard to their admission to educational institutions (including private educational institutions), whether aided or unaided.
18. Articles 29 and 30 have been grouped together under a common head, namely “Cultural and Educational Rights”. Together they confer four distinct rights on minorities. These include the right of:
(a) any section of citizens to conserve its own language, script or culture;
(b) all religious and linguistic minorities to establish and administer educational institutions of their choice;
(c) an educational institution against discrimination by state in the matter of state aid (on the ground that it is under the management of a religious or linguistic minority); and
(d) the citizen against denial of admission to any state-maintained or state-aided educational institution.
19. Article 29, especially clause (1) thereof, is more generally worded whereas Article 30 is focused on the right of minorities to (i) establish and (ii) administer educational institutions. Notwithstanding the fact that the right of the minority to establish and administer educational institutions would be protected by Article 19(1)(g), the framers of the Constitution incorporated Article 30 in the Constitution with the obvious intention of instilling confidence among minorities against any legislative or executive encroachment on their right to establish and administer educational institutions. In the absence of such an explicit provision, it might have been possible for the state to control or regulate educational institutions, established by religious or linguistic minorities, by law enacted under clause (6) of Article 19.

Legal framework for protection of religious minorities

20. Legislation such as the Protection of Civil Rights Act 1955 [formerly known as the Untouchability (Offences) Act 1955] and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 has been enacted by the central government to protect persons belonging to scheduled castes and scheduled tribes from untouchability, discrimination, humiliation, etc. No legislation of similar nature exists for minorities though it may be argued that unlike the latter act, viz the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, the former act, viz the Protection of Civil Rights Act 1955, is applicable across the board to all cases of untouchability-related offences regardless of religion. Therefore if a scheduled caste convert to Islam or Christianity (or any other person) is subjected to untouchability, the perpetrators of the offences may be proceeded against under the provisions of the act. However, no precise information is available in regard to the act being invoked to protect a person of a minority community.

The law enforcing agencies appear to be harbouring a misconception that the Protection of Civil Rights Act 1955 has been enacted to protect only scheduled castes against enforcement of untouchability-related offences. There is thus a case for sensitising the law enforcement authorities/agencies in this regard. Having said that, one cannot resist the impression that the Protection of Civil Rights Act 1955 has failed to make much of an impact due to its tardy implementation notwithstanding the fact that the offences under this act are cognisable and triable summarily. The annual report on the Protection of Civil Rights Act for the year 2003 (latest available), laid on the table of each House of Parliament under Section 15A(4) of the act, reveals that only 12 states and UTs had registered cases under the act during that year. Out of 651 cases so registered, 76.04 per cent (495) cases were registered in Andhra Pradesh alone. The number of cases registered in nine states/UTs varied from one to 17. Only in three states, the number of cases registered exceeded 20. The report also reveals that out of 2,348 cases (out of 8,137 cases, including brought/forward cases) disposed of by courts during the year, a measly 13 cases constituting 0.55 per cent ended in conviction. This appears to be a sad commentary on the state of affairs in regard to investigation and prosecution. To say that the practice of untouchability does not exist in 23 remaining states/UTs would be belying the truth that is known to the world. It only denotes pathetic inaction on the part of law enforcing agencies. The provisions of the Protection of Civil Rights Act need to be enforced vigorously with a view to ensuring that the law serves the purpose it has been enacted for.

Articles 15 and 16 of the Constitution prohibit the state from making any discrimination on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them either generally

21. With a view to evaluating progress and development of minorities, monitoring the working of safeguards provided to them under the Constitution and laws, etc, the central government had constituted a non-statutory Minorities Commission in 1978. In 1992 the National Commission for Minorities Act was enacted to provide for constitution of a statutory commission. The National Commission for Minorities was set up under the act in 1993. The functions of the commission include:
(a) evaluating the progress of the development of minorities under the union and states;
(b) monitoring the working of the safeguards provided in the Constitution and in laws enacted by Parliament and the state legislatures;
(c) making recommendations for the effective implementation of safeguards for the protection of the interests of minorities by the central government or the state governments;
(d) looking into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate authorities;
(e) causing studies to be undertaken into problems arising out of any discrimination against minorities and recommend measures for their removal;
(f) conducting studies, research and analysis on the issues relating to socio-economic and educational development of minorities;
(g) suggesting appropriate measures in respect of any minority to be undertaken by the central government or the state government; and
(h) making periodical or special reports to the central government on any matter pertaining to minorities and, in particular, difficulties confronted by them.

22. A Constitution amendment bill, viz the Constitution (103rd Amendment) Bill 2004, has been introduced so as to add a new article, viz Article 340A, to constitute a National Commission for Minorities with a constitutional status. A bill to repeal the National Commission for Minorities Act 1992 has simultaneously been introduced.

The expression ‘backward classes’ is religion-neutral and not linked with caste and may well include any caste or religious community which as a class suffered from social and educational backwardness

23. In terms of Section 13 of the act, the central government shall cause the annual report together with a memorandum of action taken on the recommendations contained therein, in so far as they relate to central government, and the reasons for non-acceptance, if any, of any recommendation… as soon as may be after the reports are received to be laid before each House of Parliament.

24. In the absence of a definite time frame for laying the annual report of the commission, there has been considerable delay in tabling the annual reports of the commission in Parliament. The National Commission for Minorities has submitted 12 annual reports for the years 1992-93 to 2004-05. The annual reports for the years 1996-97, 1997-98, 1999-2000 and 2003-04 have been tabled in Parliament only recently, some as recently as in the winter session 2006 of Parliament. Therefore there appears to be a case for amendment of the act so as to provide for a reasonable time frame for the recommendations to be laid, along with memorandum of action taken, before the Parliament/state legislature. It may be advisable to incorporate a suitable provision in the Constitution amendment bill, laying down a definite time frame for laying the annual reports of the commission on the tables of both Houses of Parliament along with action taken notes.

25. According to the provisions of clause (9) of Articles 338 and 338A, the union and every state government shall consult the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes on all major policy matters affecting the scheduled castes and the scheduled tribes respectively. Such a consultation is mandatory and can be construed to be an important constitutional safeguard for scheduled castes and scheduled tribes. A corresponding provision does not exist in the National Commission for Minorities Act 1992. In the absence of such a provision, the government of the day may or may not consult the National Commission for Minorities on major policy matters impacting minorities, depending on exigencies. Therefore the National Commission for Minorities Act 1992 needs to be suitably amended with a view to incorporating in it a provision analogous to the provision in Articles 338(9) and 338A(9). This may instil a sense of confidence amongst minorities about protection of their interests.

26. While we are on safeguards, it should be noted that a very important mechanism of ensuring the welfare of scheduled castes is constitution of a Parliamentary Committee on Scheduled Castes. The successive committees have been doing yeoman work towards safeguarding the interests of scheduled castes. Such a mechanism (of monitoring effective implementation of the constitutional and legal provisions safeguarding the interests of minorities, and also implementation of general or specific schemes for the benefit of minorities by government and its agencies/instrumentalities) is expected to be an effective step for ensuring the welfare of religious minorities.

27. The National Commission for Minority Educational Institutions Act 2004 was enacted to constitute a commission charged with the responsibilities of advising the central government or any state government on any matter relating to education of minorities that may be referred to it, looking into specific complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice, deciding on any dispute relating to affiliation to a scheduled university and reporting its findings to the central government for implementation. The act was extensively amended in 2006 (Act 18 of 2006) inter alia empowering the commission to inquire suo motu or on a petition presented to it by any minority educational institution (or any persons on its behalf) into complaints regarding deprivation or violation of rights of minorities to establish and administer an educational institution of its choice and any dispute relating to affiliation to a university and report its finding to the appropriate government for its implementation. The act also provides that if any dispute arises between a minority educational institution and a university, relating to its affiliation to such university, the decision of the commission thereon shall be final.

The commission discussed the provisions of the act as amended and felt the need to make clear-cut, concrete and positive recommendations for improving and streamlining the provisions of the act.

Criteria for Identification of Backward Sections among Religious Minorities

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Observations of the commission

41. [T]he existing criteria for identifying the socially and economically backward, whether based on caste or tribe or class, has not been totally satisfactory for several reasons. The reliability of the lists prepared is highly questionable, as it is not based on any scientific data. In the absence of reliable data, a large-scale survey should perhaps have been undertaken before the lists were prepared. Neither in the case of SCs nor of STs was such a survey undertaken either before or after independence. The OBC lists which were prepared by the Mandal Commission and thereafter by the National Commission for Backward Classes and state governments on the basis of limited information relied heavily on subjective assessments. The procedure adopted for ‘inclusion’ has been unduly easy, especially in the case of OBCs, and has had little to do with the social and economic backwardness of those included. Both at the central level and in states, instances can be cited to establish that political considerations have largely guided inclusions. The dynamics for inclusion suggests that whether it be Jats or Vokkaligas, contingencies arising out of political compulsions have guided inclusion rather than the concern for the backward or the need for reaching out to that segment of the community. The lack of a system to regularly assess the impact on castes, tribes or classes enlisted for schemes and programmes under implementation, to exclude categories either wrongly included in the list or no longer being eligible, has further complicated the situation. Non-exclusion of the ineligible has marginalised the poorest and most backward amongst various categories, including the minorities. It is little wonder therefore that tensions between groups are increasing and the demand for exclusion of the ‘creamy layer’ is gaining ground amongst all groups.

42. There is a growing dissatisfaction amongst all categories – SCs, STs, OBCs and minorities – with the existing dispensation. Dissensions are growing within communities, since the poorest and most backward in each category, whether included in the list or not, have not been able to benefit from the services and facilities being provided for ameliorating their poverty and enhancing their socio-economic status for various reasons. The better off or socio-economically better have taken advantage of the opportunities provided through programmes. During the tours of the commission to various states, strong views were expressed by government representatives, NGOs and experts that the need for excluding the creamy layer effectively was urgent, as the benefits from programmes are not percolating to the poor backward, as the creamy layers are accessing them. It was felt that the creamy layer should be excluded from all lists, including that of SCs and STs. There was also a near consensus that ‘religion’ or ‘caste’ does not determine ‘socio-economic backwardness’. Poverty is not religion or caste-based and the socially, economically backward should be identified on uniformly applicable criteria throughout the country irrespective of caste, creed/religion affirmatives.

43. In fact, questions were often raised on the commitment of the political and executive leadership over the years towards the poorest and not the backward.

45. This commission was informed by the state representatives that in the absence of any authentic survey, a real picture cannot be obtained. It is very difficult to know how many families of a particular caste lived in slums and were deprived of basic needs of drinking water, toilets and electricity. There is no record in the district offices to assess the persons who dropped out of educational institutions and at what levels. Income of the family varies from year to year and there is no mechanism by which it is computed and authenticated. However, the following suggestions were made for determining backwardness:
(a) Religion does not make anyone backward. Separate criteria for identifying poor on the basis of religion are therefore not required.
(b) In India of the 21st century, neither caste nor class is a homogenous unit and therefore family should be considered as a basic unit. The poorest of the poor families should get opportunities for advancement. Those falling in the creamy layer category should be excluded from the lists of backwards.
(c) Family-wise data should be collected and treated as valid for at least 10 years and renewed periodically.
(d) A family which does not have any member with an educational level of high school may be considered educationally backward. Likewise, the level of education of girls in a family may also be taken into consideration.
(e) Social backwardness should include people hailing from geographically isolated and remote areas.
(f) Benefits of reservations should be made time-bound and for one generation only or for not more than 50 years.
(g) Misuse of the benefits by those submitting false/fake certificates should be dealt with seriously.

46. The population of religious minorities in the urban areas is substantial while Sikhs are more or less equally divided between the rural and urban areas; Muslims, Christians, Buddhists and Jains are more urban-based than rural-based. A substantial portion of the population of religious minorities described as other religions and persuasions is rural-based. The majority community of Hindus is more rural-based though almost 76 per cent of them live in the urban areas.

47. The population of religious minorities living below the poverty line (BPL), available from the 55th round collected by NSSO in July 1999-2000, is also indicative of the backwardness and poverty of various communities. While in the rural areas, the percentage of families below the poverty line is approximately the same for Hindus and Muslims, it is higher for Muslims in the urban areas. As against 21.66 per cent Hindus living below the poverty line, 36.92 per cent of Muslims living in urban areas belong to the BPL group. More Christians (19.82 per cent) are poor in the rural areas as against the urban (11.84 per cent). There are few Sikhs (2.95 per cent) living below the poverty line in the rural areas though almost 11 per cent of their population living in urban areas forms a part of the BPL group. Of the other religions, 33 per cent who live below the poverty line are in rural areas and 18.5 per cent below the poverty line are in the urban areas.

The dynamics for inclusion suggests that  contingencies arising out of political compulsions have guided inclusion rather than the concern for the backward or the need for reaching out to that segment of the community

48. The causes for poverty and socio-economic backwardness vary between the rural and urban areas. These differ on account of type of trade and activities which are pursued by families as also due to access to services, opportunities for self-employment, etc. For example, urban areas offer greater opportunities for self-employment and wage employment as also in the services sector. In the rural areas, the families depend more on agriculture-related activities and the poverty line is determined by assets owned by way of land, etc or otherwise. The cost of living also varies between the rural and urban areas on account of various factors. It is therefore necessary to have different scales for identifying the socially and economically backward in the rural and urban areas. While the criteria applied in rural areas is determined by the social and economic status in the areas, in urban areas the determinants have to be more economic than social.

49. It is apparent from the above that the criterion for identifying the socially and economically backward should satisfy the following norms:
(i) Religion, caste or class do not determine ‘backwardness’ and therefore there is a need for evolving a uniform criterion.
(ii) Caste, religion, class, are no longer homogenous groups. They include both the backward and forward categories, literate and illiterate, socially and economically advanced and backward also. Hence the socially and economically backward amongst all categories should be identified on the basis of uniform criteria.

50. We have already examined the criteria adopted for identifying the OBCs on the basis of class/caste and pointed out the contradictions and anomalies that hinder the identifications of the socially and economically backward of all categories, including the minorities. The existing criteria for identifying the backward classes among the minorities based on the criteria suggested by the National Commission for Backward Classes is therefore not suitable or appropriate. No separate criteria have been laid down for identifying the minorities amongst the backward communities. The Government of India has however followed a multi-pronged policy. While ensuring access to social, economical and educational programmes to the minorities through general schemes, greater thrust for accelerated growth is provided through special programmes for educational and economic development which are implemented through specialised agencies for the socially and economically backward amongst them. They are selected on the same criteria as is applied to similarly placed other groups.

51. Recognising the fact that the special programmes for SC/ST/OBCs and minorities may still not reach the poor amongst these categories, the Constitution under Article 46 provides that the state shall promote with special care the educational and economic interests of all the weaker sections. The weaker sections are caste and religion-neutral.

52. In order to reach out to the weak and poor, government evolved a strategy of identifying people living below the poverty line. The aim is to identify the poor on the basis of social, educational and economic determinants for backwardness with a view to improve their economic status.

64. For evolving criteria for identifying both urban and rural poor and the socially and economically backward irrespective of caste, class and creed, etc, different norms will have to be evolved keeping in view the social, economic and educational status of the households and the local conditions. This can only be evolved by an expert committee representing different disciplines, on the basis of evaluation study which must first be undertaken to assess the adequacy and suitability of the existing criterion.

65. In view of the foregoing, it is apparent that all lists (SC/ST/OBC) have been prepared without any scientific basis (no database, as no surveys undertaken); the anomalies in ‘identification’ and ‘inclusion’ of castes, tribes, classes, have arisen from subjectivity and political considerations which have denied benefits of ‘schemes’ and programmes approved for their upliftment to the really backward. In order to ensure that ‘benefits’ reach the poorest and weakest, it is necessary that those who have reaped advantage from government programmes are excluded on a regular basis and criteria evolved which takes into account the local conditions, the family’s social and economic status and responsibilities and in no way either encourages a stake in backwardness or adversely impacts on an individual or household’s initiative or investments necessary for enhancing status.

 

Demands for Amending Constitution (Schedule Castes) Order 1950

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Constitutional provisions

1. The Constitution of India does not restrict the scheduled castes class to any select religions. The term “Scheduled Castes” has been defined in Article 366(24) read with Article 341(1) as: ““Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be scheduled castes for the purposes of this Constitution.”
(a) “The president may with respect to any state or union territory, and where it is a state, after consultation with the governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be scheduled castes in relation to that state or union territory, as the case may be.”
(b) “Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

2. Under these provisions, a Constitution (Scheduled Castes) Order was issued in 1950. Para 3 in the order said that any non-Hindu could not be regarded as a scheduled caste. Since this order was amended in 1956 to include Sikhs, and in 1990 the Buddhists, among the scheduled castes, since the latter amendment, this para says that nobody who is not a Hindu, Sikh or Buddhist can be a scheduled caste. The text of the order is reproduced below.

 

The Constitution (Scheduled Castes) Order 1950

“In exercise of the powers conferred by clause (1) of Article 341 of the Constitution of India, the president, after consultation with the governors and rajpramukhs of the states concerned, is pleased to make the following order, namely:
1. This order may be called the Constitution (Scheduled Castes) Order 1950.

2. Subject to the provisions of this order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in (Parts to (XXII)) of the schedule to this order shall, in relation to the states to which those parts respectively related, be deemed to be scheduled castes so far as regards member thereof resident in the localities specified in relation to them in those parts of that schedule.

3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a scheduled caste.

4. Any reference in this order to a state or to a district or other territorial division thereof shall be construed as a reference to the state, district or other territorial division as constituted on the 1st day of May 1976.”

 

Moves for change by legislation

Efforts have been made in the past to get the Constitution (Scheduled Castes) Order 1950 amended by legislation so as to make it religion-neutral. A number of private members’ bills have been moved in Parliament but to no avail. An official bill called the Constitution (Scheduled Castes) Order (Amendment) Bill was at last drafted in 1996. The opinions expressed by the state/UT governments on the bill, obtained by the central government, were divided. The government also took note of the recommendations of the 1983 Gopal Singh Panel and the central Minorities Commission which were strongly in favour of deleting para 3 of the SC Order of 1950, and of the Scheduled Castes and Scheduled Tribes Commission which was against the same. In view of all this divergence of opinion, the bill was not introduced in Parliament.

 

Recent court cases awaiting a decision

1. In three different pending petitions before the Supreme Court of India, the petitioners have challenged para 3 of the Constitution (Scheduled Castes) Order 1950 saying that a person not professing the Hindu, Sikh or Buddhist faith cannot be included in the lists of Scheduled Castes. They have relied upon the following grounds:
(a) Secularism is a basic feature of the Constitution of India. The denial of equal privileges to persons of scheduled caste origin converted to Christianity is in violation of both the basic features enshrined in Article 25 and the preamble to the Constitution.
(b) The Constitution has provided for equality of opportunity to all those who are similarly situated. Persons of scheduled caste origin converted to Christianity are identically situated vis-à-vis their counterparts professing the Hindu, Sikh and Buddhist religions.
(c) Even after conversion, the caste label continues and it is difficult for a person in Indian society to get out of the vice of the caste system.
(d) Caste is more a social combination than a religious group and even though the tenets of Christianity do not recognise caste, it is in fact a reality.
(e) The only available judgement on this issue, namely the constitutionality of para 3 of the Constitution (Scheduled Castes) Order 1950, is in Soosai vs Union of India 1985 (Supp SCC 590). In the judgement, the Supreme Court had accepted that the caste continued even after conversion. It had however sought for more material to show that the handicaps of persons of scheduled castes had remained the same even after conversion to Christianity. In the said case, the court was not satisfied with the material placed before it.
(f) The position of persons of scheduled caste origin converted to Christianity remains the same as before. They continue to be forced into the most demeaning occupations. Their position both in the church as well as amongst fellow Christians is no better than that suffered by their counterparts in other religious denominations. They continue to be both poor and socially and educationally backward. Intermarriages between them and upper-caste Christians are rare. In the churches, they are segregated from the upper-caste Christians. Even after death they are buried in different burial grounds.
(g) The atrocities committed on the Dalits are uniform irrespective of the religions they belong to. Yet persons of scheduled caste origin converted to Christianity are deprived of special protective provisions solely on the basis of religion.
The petitioners have sought the relief that the Supreme Court should strike down para 3 of the Constitution (Scheduled Castes) Order 1950 as unconstitutional, being violative of Articles 14, 15 and 16 of the Constitution, and direct the government to extend the protection available under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and the Protection of Civil Rights Act 1955 to all persons of scheduled caste origin irrespective of their religion.

2. Seven writ petitions making the same demand are pending in different high courts, based mainly on the following pleas:
(a) The presidential order of 1950 was issued by the president of India under Article 341 of the Constitution. The power conferred on the president by public notification is a delegated power which cannot run contrary to Article 13(2) of the Indian Constitution which states as follows: “The state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” Under Article 13(3), unless the context otherwise requires, “law” includes any ordinance, order, by-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. So the presidential order of 1950 is unconstitutional and it is a black letter written outside the Constitution, introduced through the back door by an executive order. Under Article 341, the president has no authority to proclaim the para 3 of the Scheduled Castes Order contrary to the Articles 15(2), 16(2), 29(2), and it is also against the basic structure of the Constitution as decided in Kesavananda Bharati vs State of Kerala; and para

3 of the presidential order can be quashed as per the judgement of the Supreme Court in Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur vs Union of India (AIR 1971 SC 530 (1) SCC 85). Para 3 of the presidential order is an anathema which disfigures the beauty of the written Constitution of India.
(b) Even under Article 341 the president is not given the power to proclaim to prohibit any citizen from professing any religion of his choice. But the president under Article 341 prescribes indirectly people, particularly scheduled castes, not to profess any religion different from the Hindu or Sikh religion. In other words, to get a benefit under the Scheduled Castes Order 1950, a citizen should profess only the Hindu or Sikh religion. This is against the preamble to the Indian Constitution, which secures “liberty of thought, expression, belief, faith and worship” to all its citizens. Under Article 341, the power given to the president is to specify the caste and not to specify religion or to identify the caste by the symbol of religion and hence it is a coloured legislation under the guise of a presidential order.
(c) The explanation given under Article 25 cannot be construed as exception to treat Sikhs, Jains, Buddhists and Hindus as a single class or group except for the purpose of applicability of personal laws under Article 25(2) and the presidential order has misconstrued explanation II of Article 25 for the purpose of discriminating other religions such as Christians and Muslims. Para 3 of the Scheduled Castes Order of 1950 suffers as it discriminates citizens on the ground of religion only, whereas the Scheduled Tribes Order 1951 has omitted para 3 deliberately and citizens of backward class and the forward class are not subject to discrimination on religion only in getting the equality of status and of opportunity [that] is undermined in the case of scheduled castes under the presidential order of 1950 [which] does not promote fraternity among all citizens irrespective of caste, religion and creed.
(d) In view of the judgement passed by the apex court in Indira Sawhney vs Union of India (Supp (3) SCC 217), the impugned Constitution (Scheduled Castes) Order 1950 is required to be struck down. The apex court in the said judgement, delivered by BP Jeevan Reddy (on behalf of Kania, CJ, Venkatachaliah, Ahmadi, and for himself), in majority view came to the conclusion that the concept of castes is not confined to the Hindu religion only but it extends irrespective of religious sanction.
(e) That the action of the government is arbitrary and discriminatory on the ground that on one hand the Muslims have been excluded for the purposes of treating their caste as scheduled caste but on the other hand the Muslims are included in the list of backwards, meaning thereby that a person belonging to a caste which has been included in the list of Scheduled Castes shall stand excluded from being treated as scheduled caste on the simple ground that he is a Muslim. But on the contrary, if a person though Muslim, but his caste is included in the list of backwards, shall stand included for the purpose of treating him as a backward. In view of this, the action of the government suffers from hostile discrimination against scheduled caste Muslims.
These petitioners have also sought the same relief as sought in the petitions pending before the Supreme Court.

 

Diversity of views

There is a wide divergence in the views/opinions expressed on this subject before the commission. The following views, for and against, have been expressed before us:

A. Views in favour
(i) Even though Christianity and Islam do not recognise the caste system or untouchability, the ground reality in India is different. Persons of scheduled caste origin converted to Christianity/Islam continue to be subjected to disabilities, including untouchability associated with caste and occupation, as they continue to be part and parcel of Indian society.
(ii) It is not only society that discriminates against persons of scheduled caste origin converted to Christianity/Islam (inasmuch as such converts are not treated by other members of their own religion or by members of other religions as their equals); they are being discriminated against even by their own religious institutions like the church or mosque, the manifestation of discriminations being separate churches/mosques or separate prayer halls or prayer timings in the same church/mosque for them and earmarked areas for burial of their dead.
(iii) Denial of scheduled caste status to them despite untouchability-related practices being enforced against them or atrocities committed against them deprives them of the protection of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989.
(iv) Despite no visible change in their social or economic status as a result of conversion, the converts are deprived of the benefits of reservation, support and development schemes formulated for their counterparts in the Hindu, Sikh and Buddhist religions. This amounts to discrimination by the state on the ground of religion.
(v) Exclusion of Christianity and Islam from the purview of the Constitution (Scheduled Castes) Order 1950 is discriminatory and unconstitutional, being violative of the provisions of fundamental rights guaranteed under Articles 14, 15, 16 and 25 of the Constitution. Change of religion being a strictly personal matter, such change should not deprive persons of scheduled caste origin [of the] protection and benefits available to similarly placed persons in other religions.
(vii) Although Sikhism and Buddhism do not recognise the caste system, like Christianity and Islam, both Sikhs and Buddhists have been given the status of scheduled castes by amending the Constitution (Scheduled Castes) Order 1950. There is no reason as to why similar dispensation cannot be extended to similarly placed persons who profess Christianity or Islam. That this is not being done is discrimination on the ground of religion that is prohibited by the Constitution.
(viii) Groups and classes of persons of scheduled caste origin professing Christianity/Islam who are included in the list of OBCs should be delisted therefrom and be given the status of scheduled castes.

B. Counterviews
(i) The very basis of identification of a certain class of people as scheduled caste is social, educational and economic backwardness arising from the age-old practice of untouchability that flowed from a rigid caste system in the Hindu religion.
(ii) Persons professing Christianity or Islam were not treated as depressed class/scheduled castes by the British in pre-independent India or by the Indian government after independence. The status of depressed class/scheduled castes was an inseparable concomitant of the Hindu religion in British and independent India.
(iii) Persons of scheduled caste origin converted to Christianity/Islam who are socially and educationally backward are included in the list of OBCs and are benefiting from reservation in services/educational institutions in favour of OBCs and from other schemes and institutional support systems formulated for OBCs.
(iv) Apart from the benefits available to the socially and educationally backward amongst Christians and Muslims as OBCs, they are also benefiting from the constitutional, legal and institutional protection/arrangements as members of minority communities.
(v) Presently, reservation is available for SCs and STs @ 15 per cent and 7.5 per cent respectively although, as per the 2001 Census, their share in the population is much more. Grant of SC status to converts to Christianity/Islam would therefore adversely affect the benefits available to scheduled castes in the matter of reservation in services/posts and educational institutions and related matters.

 

Conclusion

1. Inclusion of castes in the old Government of India (Scheduled Castes) Order 1936 itself was based on general impressions and not on any actual survey of the caste situation in the country. The same can be said about the Constitution (Scheduled Castes) Order 1950 which was based on the old SC Order of 1936; inclusion of additional castes from time [to time] to the lists under the present order of 1950 is also not based on a scientific survey of the actual caste situation in the country.

2. By all available evidence we do find the caste system to be an all-pervading social phenomenon of India shared by almost all Indian communities irrespective of religious persuasions.

3. It is claimed and agreed to by almost all sections of society in India, in various contexts and especially in respect of the issue of reservations, that no special benefits can be given to any community or group on the basis of religion. At the same time however, it is generally insisted upon that the class of scheduled castes must remain religion-based. This seems to be illogical and unreasonable.

4. Our recommendations on this matter, made in accordance with these conclusions, are given in Chapter 10.

5. Member-secretary of the commission did not agree with these conclusions and has given a Note of Dissent.

Recommendation and Modalities for their Implementation

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1. In the preceding chapters, we have discussed at length the socio-economic status of the religious and linguistic minorities, the legal and constitutional provisions for safeguarding their interests, and welfare and developmental measures adopted for giving a greater thrust to their growth and development with a view to mainstream them. We have also reviewed the criterion which already exists for identifying the socially and economically backward amongst different categories of people in the country, including the religious and linguistic minorities. While reviewing the status of socially and economically backward amongst different classes, including the minorities, the commission has been guided by the constitutional provisions and the goals that the Constitution has set for the country.

The ultimate objective as laid down by the Constitution is of a country secular in nature, based on the principles of equality, social justice and equity for all its citizens without discrimination on the basis of caste, creed, sex or religion. Taking note of the existing inequalities, it makes both mandatory and enabling provisions for facilitating the creation of a society where caste, class, religion, will have none or minimal influence. In conformity with constitutional directives, a two-pronged strategy has been evolved for enhancing the status of its people. The socially and economically backward are eligible for benefits from all policies and programmes of government without any discrimination, as they are meant for all.

Additionally, special provisions have been made for the categories of SCs, STs, OBCs, weaker sections and minorities to ensure greater thrust and focus for their accelerated development to bring them at par with the general category of people through line ministries/departments/institutions. The commission is aware that many of these programmes and interventions have enabled positive discrimination in favour of the backwards for their educational, social and economic development which have had a favourable impact on their status. These programmes are being implemented for the last several decades.

2. The commission has also taken note of the changing nature of the socio-economic structure of society since independence. It was noted that due to the impact of various departmental and other policies and programmes, industrialisation and migration from rural to urban areas, the rigidities of the age-old social structures have undergone a change which has substantially blurred the existing divisions in society. The dwindling role of government has reduced the potential for employment within the government. The economy is growing at a fast pace due to technological advancements, industrialisation and expansion of communication network. These have opened newer vistas for employment with the result that the potential for employment by and large exists outside the government.

3. Despite the initiative taken by the government through policies of positive discrimination and affirmative action through reservation, special schemes and programmes for social, educational and economic development, it was noted that there is a widespread perception by both policy formulators and implementers of programmes as also the target groups that the flow of benefits to them has not been uniform and the poorest amongst them have by and large been left out. While reviewing the policies and programmes, the commission has consciously tried to identify the causes for such widespread belief regarding unequal treatments. The commission is of the view that a uniform approach towards socially and economically backwards needs to be evolved which should not be based on caste, class or religion so that social justice and equity can be guaranteed to all. The criterion therefore should be uniform, based on social, educational and economic indices equally applicable to all. Those educationally and economically backward are by and large also socially backward.

4. Ideally, there should be no distinction on the basis of caste, religion or class. There should be a single list of socially and economically backwards, including religious and linguistic minorities, based on common criteria. The existing lists prepared on the basis of backwardness of caste or class should cease to exist after the list of socially and economically backwards is ready. The new list of socially and economically backwards has necessarily to be family/household-based. It should be all-inclusive and based on socio-economic backwardness.

5. On the basis of the above, the commission strongly feels that as education is crucial for development and enhancement of social and economic status, the focus has to be not only on extending the facilities for education to all equally but also ensuring the quality of education. Education through acquisition of knowledge improves ability and capacity and instils confidence and competitive spirit. It nurtures and strengthens self-reliance and enables individuals to seek better employment opportunities. Educational programmes therefore have to equip the individuals for their social and economic development. Facilities through various measures must therefore be provided by both the public and private sectors, which should reflect the needs of the various sections of society and its economy.

6. As we have discussed in the chapter on welfare measures, education is the key to development. It is the most important requirement for improving the socio-economic status of the backward sections among religious minorities. The literacy and educational levels among religious minorities vary considerably from one community to the other and from one area to the other. While the educational level of Jains, Christians and Parsis is higher, that of Muslims and Buddhists is low and is next to SCs/STs. Census statistics on the status of religious minorities reveals that the educational status of Muslims is relatively low. However, disaggregated data presents a picture of unevenness in the educational status of Muslims and Buddhists, cutting across the states. The states of Bihar, Madhya Pradesh, Rajasthan and Uttar Pradesh, which account for almost 65 per cent of the total population of Muslims in the country, present a dismal picture in terms of social indicators of development for the general population also. In terms of educational, social and economic status, in the underdeveloped or backward states, the poor and socially and economically backward of each community, including the Muslims, are equal victims and suffer equally from disabilities or deprivation. There is therefore an urgent need for taking a comprehensive view of socially and economically backwards of all communities in an integrated manner and not deal with the issue of educational backwardness in a segregated manner. The need for expanding coverage and providing quality education, focusing on girls’ education and strengthening vocational education is vital for educational development of weaker sections among all backward classes, SCs and STs and minorities.

7. Now that national programmes like Sarva Shiksha Abhiyan are available to all sections of society throughout the country, there is a need to ensure participation in the programme by all children belonging to religious minorities, SCs/STs and other backward classes so that the facilities are equally shared and dropout rates can be contained. Area-based approach needs to be adopted and socially and economically backwards targeted locally.

8. The educational status of minorities has been discussed in the preceding chapters. We find that the enrolment of children of religious minorities at the primary level is better than that of SCs/STs. However, the dropout rate of Muslims is higher at the middle and secondary level. Social and economic prosperity is closely linked to the level of education and training of an individual. Acquisition of knowledge and competitive spirit is essential for accessing facilities and opportunities that the society and its economy offer. The socially and economically backward minorities need to be enlightened about the importance of acquiring knowledge and creating competitive spirit with a view to ensuring that merit is properly rewarded and reservation is not used to kill initiative and competitive spirit. The intelligentsia among the religious minorities should convince the community for active participation in educational programmes/schemes and nurture initiative and spirit of competition amongst them.

9. As in the case of education, the economic status of religious minorities varies from group to group and area to area. While level of education and status has direct linkage with the employability and economic well-being of an individual, economic empowerment is also dependent on several other factors. The work participation both in the case of females and males, traditional and cultural influences, especially with regard to female participation, the type and nature of work, etc also influence the economic status of individuals, households and often of communities. In the case of religious minorities, the work participation rate of Buddhists, Hindus and Christians is approximately the same as for all religious populations which is 39.1 per cent. The WPR of Sikhs is slightly less than the national average.
However, in the case of both Jains and Muslims, it is low though perhaps for different reasons. Muslims are the lowest at 31.3 per cent. In terms of categories of workers, more Hindus, Sikhs and Christians are cultivators than Muslims. Christians and Sikhs are lowest in terms of agriculture workers while Muslims have the highest percentage of workers in the household industry sector. In terms of ‘other occupations’, the number of Christians is proportionately the largest in this category at 52.8 per cent. The number of Muslims in this category stands at 49.1 per cent, Hindus at the lowest at 35.5 per cent. The level of poverty determines the economic status of individuals. In terms of poverty figures, while percentage of people living below the poverty line, Muslims approximate to that of Hindus in the rural areas, the percentage of Muslims living below the poverty line in the urban areas is high. The largest number of people in the rural areas who live below the poverty line belong to the category of other religions.

10. From the above figures it can safely be said that by and large the religious minorities are more urban-based than rural-based. While more Christians are engaged in wage employment, more Muslims are employed in household industries and are by and large self-employed. Despite these variations, it is apparent that the population of religious minorities is as dispersed as that of the majority community. It is therefore necessary that to economically empower the poor in a holistic manner, adequate infrastructure has to be created and access through state and community interventions ensured keeping in mind their varied needs and requirements both in the rural and urban areas. Jain and Parsi communities are economically better off and very few of them would, if at all, come into the category of people below the poverty line or backward classes.

11. The status of women in society largely determines the social and economic well-being of a society and country. Their participation in economic activities at home and outside on an equal footing and the response of the community in providing support systems to facilitate their continuous involvement at all levels indicates socio-economic health of the society. It is therefore important that equal rights are not only guaranteed to them but are ensured in all spheres and a protective, secure environment conducive to women’s involvement is provided.

12. In every organisation – governmental or non-governmental, planning and implementation are both equally important aspects of administration. Planning, formulating policies and programmes for the development of the country and its peoples for fulfilling the objectives that are laid down, is vital for sustainable development. Good governance not only depends on appropriate policies which are need-based and identify target areas and groups or households but is equally dependent on a suitable administrative framework and mechanism that ensures delivery of services and facilities in an equitable and just manner. For effective implementation of programmes, it is important that infrastructure – institutional and administrative – is in place. Systems need to be in place to regularly review policies, programmes and mechanisms, to assess their appropriateness and feasibility as also to constantly monitor to ensure that the target groups and beneficiaries are availing of the services and facilities being provided for them. Concurrent evaluation is necessary to identify the gaps and or causes for tardy implementation, and corrective measures taken midstream for realisation of aims and objectives.

13. In the preceding chapters, we have pointed out shortfalls and lacunae in the existing policies and programmes, and the anomalies that exist and have come to light in implementation. It has also been highlighted that these have resulted in marginalising the socially and economically backward of all categories, since the benefits have gone to the upper crust within the groups of backwards. Changes in the existing criterion for identifying the eligible out of the backwards is necessary. In a democracy, decentralisation of administrative and financial powers and authority is important. This is specially vital in a vast country like ours which has variations in terrain, population distribution, culture, tradition, state of development and needs – area and people-wise. In order to ensure that the socially and economically backward amongst all categories, including the minorities, are able to take benefits from the schemes and programmes, powers must be vested at a level from where the access to and for each individual/household of the socially and economically backward is possible. In order to establish the efficacy of administration, it has to be ensured that the constitutional provision of equal treatment to socially and economically backwards irrespective of caste or creed is followed in word and spirit for ensuring the flow of benefits to the SEB families.

14. Reservation as a measure of affirmative action has been discussed in detail in Chapter 8. The commission considered various viewpoints brought before it during visits to the states as also during interaction with governmental authorities, NGOs, social scientists, etc. The commission was of the view that ideally the criteria for reservation should be socio-economic backwardness and not religion or caste. Further, Article 16(4) should be the basis for providing reservation benefits to minority groups who are socially and economically backward. Reservation should be provided only as a short-term, time-bound measure for enabling greater participation, both in education and employment. As we have mentioned earlier, the lists of SCs/STs and OBCs have not been scientifically prepared either on the basis of a proper survey or reliable data on socio-economic status of a particular caste or class. Therefore the entire system of reservation, including that for SCs/STs and OBCs, needs to be overhauled. Reservation as available to SCs and STs is open-ended, as it is available to all belonging to the category irrespective of income, educational and economic status. OBCs enjoy 27 per cent reservation in employment though the creamy layer is excluded. The norms and methodology adopted, as pointed out in Chapter 8, is full of anomalies and hence amenable to large-scale abuse. For this reason, the better off among the groups take advantage of reservation at the cost of the socially and economically backward and deprived. It is therefore necessary to limit benefits of reservation to the socially and economically backward only. Since
BPL lists are prepared on the basis of social/educational and economic criteria, they are more scientific. They are also revised periodically. BPL lists should therefore be made eligible for grant of reservation without distinction on caste, class, group or religion basis.

15. The commission is of the view that provision of educational facilities to all sections of the population at all levels is most important. The quality of education at the primary and secondary levels is paramount to equip the weaker sections for competing on merit for admission in higher/professional educational institutions. As discussed in the workshop organised by the Delhi School of Economics, referred to in the chapter on reservation, the four main dimensions of group disadvantages are caste/community, gender, region and sector of residence (rural or urban). It is also essential to ensure that the creamy layer among the backward classes is kept out, failing which concessions granted by the reservation policy will be grabbed by the creamy layer and not reach the poorest of the poor.

16. We now proceed to list the concrete recommendations we would like to make to answer each of the commission’s terms of reference – three original and a fourth one added later.

Term of reference No. I
Criteria for identifying socially and economically backward classes among the religious and linguistic minorities

16.1.1. In our considered opinion, the ultimate goal should be the evolution of a uniform pattern of criteria for identifying the backward, which should be based only on the educational and economic status of people and not on their caste or religion, and its application equally to all sections of citizens irrespective of their caste or religion. And we do suggest that overall efforts should be directed towards gradually leading the nation to that goal.

16.1.2. We however do understand that achievement of that ultimate goal will take a long time, as it would obviously require building public opinion and procuring national consensus in its favour as also a strong political will for translating it into concrete action. We are therefore recommending some other measures to be adopted now, pending the possible achievement of what we have called the ultimate goal.

16.1.3. The measures recommended by us will in our opinion pave the way for achieving the aforestated ultimate goal in future on the one hand while ensuring on the other hand a faithful compliance at present with the constitutional directives of social, economic and political justice and equality of status and opportunity as proclaimed by the preamble to the Constitution and detailed in its provisions on fundamental rights.

Religious minorities

16.1.4. We wish to clarify at the outset that whatever recommendations of a general nature (for all minorities) we are making here are not only for the communities notified as “minorities” by executive action under the National Commission for Minorities Act 1992 but for all religious minorities – large or small – including the Hindus in the union territory of Lakshadweep and the states of Jammu and Kashmir, Meghalaya, Mizoram, Nagaland and Punjab.

16.1.5. We recommend that in the matter of criteria for identifying backward classes there should be absolutely no discrimination whatsoever between the majority community and the minorities; and therefore the criteria now applied for this purpose to the majority community – whatever that criteria may be – must be unreservedly applied also to all the minorities.

16.1.6. As a natural corollary to the aforesaid recommendation we recommend that all those classes, sections and groups among the minorities should be treated as backward whose counterparts in the majority community are regarded as backward under the present scheme of
things.

16.1.7. We further recommend that all those classes, sections and groups among the various minorities as are generally regarded as ‘inferior’ within the social strata and societal system of those communities – whether called ‘zat’ or known by any other synonymous expression – should be treated as backward.

16.1.8. To be more specific, we recommend that all those social and vocational groups among the minorities who but for their religious identity would have been covered by the present net of scheduled castes should be unquestionably treated as socially backward irrespective of whether the religion of those other communities recognises the caste system or not.

16.1.9. We also recommend that those groups among the minorities whose counterparts in the majority community are at present covered by the net of scheduled tribes should also be included in that net; and also, more specifically, members of the minority communities living in any tribal area from pre-independence days should be so included irrespective of their ethnic characteristics.

Linguistic minorities

16.1.10. In our opinion, the concept of ‘backwardness’ is to be confined in its application to religious minorities, as it has no relevance for the linguistic minorities. The latter may be facing some other problems like discrimination and denial of constitutional rights in practice but no linguistic group may be regarded as backward by itself. We are not therefore recommending any criterion for identifying ‘socially and economically backward classes’ among the linguistic minorities.
16.1.11. We are, of course, conscious of the fact that those linguistic minority groups who keep their education restricted to their own language are often handicapped in the matter of competing with others in respect of educational development and economic advancement. To address this problem, we are recommending some specific welfare measures but would not like to identify language as one of the criteria for identifying backward classes among the people.

Term of reference No. II

Measures of welfare for minorities, including reservation

16.2.1. As democracy is a game of numbers, the numerically weaker sections of the citizenry in any society may and often do get marginalised by the majority. This is eminently true of the religious minorities in India where society remains intensively religious and religion-conscious and the religious minorities live with a predominant religious community accounting for over 80 per cent of the national population. In such a situation, legal protection from the hegemony and preponderance of the majority community becomes a pressing need of the religious minorities as a whole and not just that of the ‘backward’ sections among them. To provide such necessary protection by law, we do have in the Constitution a Directive Principle of State Policy, Article 46, which speaks of “weaker sections of the people” – notably without subjecting them to the condition of backwardness – and mandates the state to “promote with special care” the educational and economic interests of such sections. It is keeping this in mind that we are making certain recommendations for the religious communities as such – though we are, of course, also recommending some special measures for the socially and educationally backward sections among the minorities.
16.2.2. We have a convinced opinion that backwardness – both social and economic – actually emanates from educational backwardness. We are therefore making certain measures for the educational advancement of the religious minorities – especially the Muslims and the neo-Buddhists – who were identified under the National Education Policy of 1986 as educationally most backward among all the religious communities of the country. At the same time, we are also recommending some measures for the economic betterment of the backward sections among the religious minorities.
16.2.3. As regards linguistic minorities, they are entitled to certain reliefs under some specific provisions of the Constitution and it is in accordance with those provisions that we are recommending some welfare measures also for them.

General welfare measures
Educational measures

16.2.4. We further clarify that by the word ‘education’ and its derivatives as used below we mean not only general education at the primary, secondary, graduate and postgraduate levels but also instruction and training in engineering, technology, managerial and vocational courses and professional studies like medicine, law and accountancy. All these subjects and disciplines – as also the paraphernalia required for these, like libraries, reading rooms, laboratories, hostels, dormitories, etc – are included in our recommendations for the advancement of education among the minorities.

16.2.5. As the meaning and scope of Article 30 of the Constitution has become quite uncertain, complicated and diluted due to their varied and sometimes conflicting judicial interpretations, we recommend that a comprehensive law should be enacted without delay to detail all aspects of minorities’ educational rights under that provision with a view to reinforcing its original dictates in letter and spirit.

16.2.6. The statute of the National Minority Educational Institutions Commission should be amended to make it wide-based in its composition, powers, functions and responsibilities and to enable it to work as the watchdog for a meticulous enforcement of all aspects of minorities’ educational rights under the Constitution.

16.2.7. As by the force of judicial decisions the minority intake in minority educational institutions has, in the interest of national integration, been restricted to about 50 per cent thus virtually earmarking the remaining 50 per cent or so for the majority community – we strongly recommend that, by the same analogy and for the same purpose, at least 15 per cent seats in all non-minority educational institutions should be earmarked by law for the minorities as follows:
(a) The break-up within the recommended 15 per cent earmarked seats in institutions shall be 10 per cent for the Muslims (commensurate with their 73 per cent share of the former in the total minority population at the national level) and the remaining five per cent for the other minorities.
(b) Minor adjustments inter se can be made in the 15 per cent earmarked seats. In the case of non-availability of Muslim candidates to fill 10 per cent earmarked seats, the remaining vacancies may be given to the other minorities if their members are available over and above their share of five per cent; but in no case shall any seat within the recommended 15 per cent go to the majority community.
(c) As is the case with the scheduled castes and scheduled tribes at present, those minority community candidates who can compete with others and secure admission on their own merit shall not be included in these 15 per cent earmarked seats.
16.2.8. As regards the backward sections among all the minorities, we recommend that the concessions now available in terms of lower eligibility criteria for admission and lower rate of fee, now available to the scheduled castes and scheduled tribes, should be extended also to such sections among the minorities. Since women among some minorities – especially the Muslims and Buddhists – are generally educationally backward, we recommend the same measure for them as well and suggest that other possible measures be also initiated for their educational advancement.

16.2.9. In respect of the Muslims – who are the largest minority at the national level with a countrywide presence and yet educationally the most backward of the religious communities – we recommend certain exclusive measures as follows:
(i) Select institutions in the country like the Aligarh Muslim University and the Jamia Millia Islamia should be legally given a special responsibility to promote education at all levels to Muslim students by taking all possible steps for this purpose. At least one such institution should be selected for this purpose in each of those states and union territories which has a substantial Muslim population.
(ii) All schools and colleges run by the Muslims should be provided enhanced aid and other logistic facilities adequate enough to raise their standards by all possible means and maintain the same.
(iii) The Madrassa Modernisation Scheme of the government should be suitably revised, strengthened and provided with more funds so that it can provide finances and necessary paraphernalia either (a) for the provision of modern education up to Standard X within those madrassas themselves which are at present imparting only religious education or, alternatively, (b) to enable the students of such madrassas to receive such education simultaneously in the general schools in their neighbourhood. The Madrassa Modernisation Scheme may, for all these purposes, be operated through a central agency like the Central Wakf Council or the proposed Central Madarsa Education Board.
(iv) The rules and processes of the Central Wakf Council should be revised in such a way that its main responsibility should be educational development of the Muslims. For this purpose, the council may be legally authorised to collect a special five per cent educational levy from all Wakfs and to sanction utilisation of Wakf lands for establishing educational institutions, polytechnics, libraries and hostels.
(v) In the funds to be distributed by the Maulana Azad Education Foundation, a suitable portion should be earmarked for the Muslims proportionate to their share in the total minority population. Out of this portion, funds should be provided not only to the existing Muslim institutions but also for setting up new institutions from nursery to the highest level and for technical and vocational education anywhere in India but especially in the Muslim-concentration areas.
(vi) Anganwadis, Navodaya Vidyalayas and other similar institutions should be opened under their respective schemes especially in each of the Muslim-concentration areas and Muslim families be given suitable incentives to send their children to such institutions.

16.2.10. As regards the linguistic minorities, we recommend the following measures:
(a) The law relating to the linguistic minorities commissioner should be amended so as to make this office responsible for ensuring full implementation of all the relevant constitutional provisions for the benefit of each such minority in all the states and union territories.
(b) The three-language formula should be implemented everywhere in the country, making it compulsory for the authorities to include in it the mother tongue of every child – including, especially, Urdu and Punjabi – and all necessary facilities, financial and logistic, should be provided by the state for education in accordance with this dispensation.
(c) Members of those linguistic minority groups whose education is limited to their mother tongue and who do not have adequate knowledge of the majority language of the region should be provided special facilities in the form of scholarships, fee concession and lower eligibility criteria for admission to enable them to acquire proficiency in the regionally dominant language.
(d) Urdu medium schools should be provided special aid and assistance – financial and otherwise – to enhance and improve their efficiency, standards and results.

Economic measures

16.2.11. As many minority groups specialise in certain household and small-scale industries, we recommend that an effective mechanism should be adopted to work for the development and modernisation of all such industries and for a proper training of artisans and workmen among the minorities – especially among the Muslims among whom such industries, artisans and workmen are in urgent need of developmental assistance.

16.2.12. As the largest minority of the country, the Muslims, as also some other minorities have a scant or weak presence in the agrarian sector, we recommend that special schemes should be formulated for the promotion and development of agriculture, agronomy and agricultural trade among them.

16.2.13. We further recommend that effective ways should be adopted to popularise and promote all the self-employment and income-generating schemes among the minorities and to encourage them to benefit from such schemes.

16.2.14. We recommend that the rules, regulations and processes of the National Minorities Development and Finance Corporation be overhauled on a priority basis – in the light of the recent report recently submitted by the NMDFC Review Committee and in consultation with the National Commission for Minorities – with a view to making it more efficient, effective and far-reaching among the minorities.

16.2.15. We further recommend that a 15 per cent share be earmarked for the minorities – with a break-up of 10 per cent for the Muslims (commensurate with their 73 per cent share of the former in the total minority population at the national level) and five per cent for the other minorities – in all government schemes like Rural Employment Generation Programme, Prime Minister’s Rozgar Yojana, Grameen Rozgar Yojana, etc.

Reservation

16.2.16. Since the minorities – especially the Muslims – are very much underrepresented, and sometimes wholly unrepresented, in government employment, we recommend that they should be regarded as backward in this respect within the meaning of that term as used in Article 16(4) of the Constitution – notably without qualifying the word “backward” with the words “socially and educationally” – and that 15 per cent of posts in all cadres and grades under the central and state governments should be earmarked for them as follows:
(a) The break-up within the recommended 15 per cent shall be 10 per cent for the Muslims (commensurate with their 73 per cent share of the former in the total minority population at the national level) and the remaining five per cent for the other minorities.
(b) Minor adjustments inter se can be made within the 15 per cent earmarked seats. In the case of non-availability of Muslims to fill 10 per cent earmarked seats, the remaining vacancies may be given to other minorities if their members are available over and above their share of five per cent; but in no case shall any seat within the recommended 15 per cent go to the majority community.

16.2.17. We are convinced that the action recommended by us above will have full sanction of Article 16(4) of the Constitution. Yet should there be some insurmountable difficulty in implementing this recommendation, as an alternative we recommend that since according to the Mandal Commission report the minorities constitute 8.4 per cent of the total OBC population, in the 27 per cent OBC quota an 8.4 per cent sub-quota should be earmarked for the minorities with an internal break-up of six per cent for the Muslims (commensurate with their 73 per cent share in the total minority population at the national level) and 2.4 per cent for the other minorities – with minor adjustments inter se in accordance with the population of various minorities in various states and UTs.

16.2.18. We further recommend that the reservation now extended to the scheduled tribes, which is a religion-neutral class, should be carefully examined to assess the extent of minority presence in it and remedial measures should be initiated to correct the imbalance, if any. The situation in Meghalaya, Mizoram, Nagaland and Lakshadweep, which are minority-dominated and predominantly tribal, as also such tribal areas/districts in Assam and all other states, is to be especially taken into account in this respect.

16.2.19. We recommend that the judicial reservation recently expressed in several cases about the continued inclusion of the creamy layer in various classes enjoying reservation, inclusive of the scheduled castes and scheduled tribes, should be seriously considered for acceptance as a state policy.
 

Additional term of reference

Para 3 of the Constitution (Scheduled Castes) Order 1950
16.3.1. On a careful examination of prevalence of the caste system among various sections of the Indian citizenry we have concluded that caste is in fact a social phenomenon shared by almost all Indian communities irrespective of their religious persuasions. Many of the particular castes are found simultaneously in various religious communities, equally facing problems of social degradation and mistreatment both by their co-religionists and the others.

16.3.2. We are also conscious of the fact that the Constitution of India prohibits any discrimination between citizens on the basis of caste, and yet it sanctions special affirmative measures for scheduled castes. At the same time, it prohibits any discrimination on the ground of religion. Reading all these constitutional provisions together, we are convinced that any religion-based discrimination in selecting particular castes for affirmative action will conflict with the letter and spirit of the constitutional provisions. We are accordingly making the following recommendations on this additional term of reference added by the government to our original terms of reference several months after we began our work

16.3.3. We recommend that the caste system should be recognised as a general social characteristic of the Indian society as a whole, without questioning whether the philosophy and teachings of any particular religion recognise it or not – since the Indian brands of certain faith traditions like Christianity and Islam have never assimilated many puritan principles of those religions, posing this question in respect of the caste system only and singling [it] out for differential treatment is unreasonable and unrealistic.

16.3.4. We would like this fact to be duly recognised that among the Muslims of India the concepts of zat (caste) and arzal (lower castes) are very much in practice; and even the Muslim law of marriage recognises the doctrine of kufw – parity in marriage between the parties in all vital respects, including social status and descent – which in this country means nothing but caste.

16.3.5. In view of what has been said above, we recommend that para 3 of the Constitution (Scheduled Castes) Order 1950 – which originally restricted the scheduled caste net to the Hindus and later opened it to Sikhs and Buddhists thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc – should be wholly deleted by appropriate action so as to completely delink the scheduled caste status from religion and make the scheduled caste net fully religion-neutral like that of the scheduled tribes.

16.3.6. We further recommend that all those groups and classes among the Muslims and Christians, etc whose counterparts among the Hindus, Sikhs or Buddhists are included in the central or state Scheduled Castes lists should also be covered by the scheduled caste net. If any such group or class among the Muslims and Christians, etc is now included in an OBCs list, it should be deleted from there while transferring it to the Scheduled Castes – placing the same persons in the Scheduled Castes list if they are Hindu, Sikh or Buddhist but in the OBCs list if they follow any other religion – which is the case in many states – in our opinion clearly amounts to religion-based discrimination.

16.3.7. We further recommend that as the Constitution of India guarantees freedom of conscience and religious freedom as a fundamental right, once a person has been included in a Scheduled Castes list, a wilful change of religion on his part should not affect adversely his or her scheduled caste status – as that would in our opinion conflict with the basic constitutional provisions relating to equality, justice and non-discrimination on religious grounds as also with the spirit of the old and time-tested Caste Disabilities Removal Act of 1850.

Term of reference No. III
Modalities for implementing our recommendations

16.4.1. We have been asked also “to suggest the necessary constitutional, legal and administrative modalities” required for the implementation of our recommendations.
In this regard, we have to say as follows.

16.4.2. We are not suggesting any amendment in the Constitution – as we are fully convinced that none of our recommendations requires for its implementation any amendment of the Constitution and that each of these can be fully implemented by legislative or/and administrative action.

16.4.3. We recommend that all central and state acts, statutory rules and regulations be suitably amended to implement those of our recommendations which in the opinion of the ministry of law and justice or any another concerned authority may require such amendments.

16.4.4. More specifically, we recommend the following legislative actions which in our opinion are required either for the implementation of some of our recommendations stated above or otherwise in the interest of the welfare of minorities:
(a) Enactment of a detailed law to enforce the dictates of Article 30 of the Constitution;
(b) Amendment of the National Commission for Backward Classes Act 1993;
(c) Amendment of the Constitution (Scheduled Castes) Order 1950 and the Constitution (Scheduled Tribes) Order 1951 as also of the central and state lists of the Scheduled Castes and Scheduled Tribes;
(d) Review of the laws and rules, processes and procedures relating to selection and notification of OBCs at the central and state levels;
(e) Enactment of a law to clothe with statutory status and judicial enforceability the Prime Minister’s 15-Point Programme for Minorities 1983 as modified in 2006;
(f) Amendment of the National Commission for Minorities Act 1992 and the National Commission for [Minority] Educational Institutions Act 2004 so as to make it necessary for the government to appoint as the chairpersons and members of these bodies – through a search committee as in the case of the National Human Rights Commission – only reputed experts in the constitutional, legal, educational and economic matters relating to the minorities;
(g) Necessary amendments in the Wakf Act 1995 and all the rules framed under its provisions;
(h) Review and necessary overhaul of the laws, rules, regulations, procedures and processes relating to the National Minorities Development and Finance Corporation and the Maulana Azad Education Foundation.
16.4.5. We recommend the following administrative measures which in our opinion are required either for the implementation of some of our recommendations or otherwise in the interest of the welfare of minorities:
(a) Establishment of a Parliamentary Committee to consider and decide in the light of the Constitution policy matters relating to the minorities;
(b) Establishment of a National Committee consisting of chairpersons of National Human Rights Commission, National Commission for Women, National Commission for Backward Classes, National Commission for Scheduled Tribes, National Commission for Scheduled Castes, National Commission for Minorities, National Commission for Minority Educational Institutions, National Minorities Development and Finance Corporation, Commissioner for Linguistic Minorities, Central Wakf Council and Maulana Azad [Education] Foundation along with nominated experts for monitoring the educational and economic development of the minorities;
(c) Creation of similar bodies in all the states/UTs for the same purpose and consisting of local top-level officials dealing with minority-related matters and independent experts;
(d) Establishment of a National-level Coordination Committee consisting of representatives of all the nationalised banks and other financial institutions to work under the Reserve Bank of India for monitoring credit flow to the minorities;
(e) Establishment of state Minorities Commissions and Minority Welfare Departments in all those states and UTs where these do not exist as of now;
(f) Decentralisation of all minority-related schemes, programmes and plans so as to create suitable district-level mechanisms for their day-to-day implementation;
(g) Revision of the list of Minority-Concentration Districts as suggested by the National Commission for Minorities in the 1990s and initiating special educational, economic and general welfare measures there through the local administration;
(h) Appointment of a Minority Welfare Committee consisting of officials and local experts in all districts of the country to act [as] nodal agencies of the National Commission for Minorities, state Minorities Commissions and all other central and state-level bodies working for the minorities.

 

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