Whichever way you look at it, in simple human terms, rationally, constitutionally or theologically, the dogged refusal of the bulk of the ulema in India and the All India Muslim Personal Law Board (AIMPLB) to call for an end to the Muslim male right to triple talaq (instant divorce) defies comprehension.
 

In human terms, in terms of any notion of gender justice, the unilateral, arbitrary and whimsical right of a Muslim male to divorce his wife in an instant – a letter, telegram, telephone, telex, fax even an SMS would do – cannot be described as anything but inhuman and anti-women.
 

In rational terms it defies any definition of justice or equity. Triple talaq cannot but be unconstitutional because it is so blatantly unjust, unfair, arbitrary and discriminatory.
 

Even theologically, it is difficult to digest the position long held by the ulema and until recently accepted by the courts: "Though bad in theology (haram, sinful), triple talaq is good in law".
 

What this means in simple terms is that the moment a Muslim male utters talaq, talaq, talaq, his wife becomes unlawful to him, even if he has uttered those words under coercion, in a fit of rage or in a drunken state and regrets his utterance the very next moment. The only way out for the couple to resume their marital relation, the ulema say, is through halala: the woman must marry someone else, consummate the marriage, get the second husband to divorce her and then remarry the first husband.
 

It is repeatedly claimed, not by Muslims alone but also by many non-Muslim scholars, that justice and equality are the key social message of Islam. How can the practice of triple talaq be squared with any notion of justice or equity? It is not known if the ulema or the AIMPLB have ever asked themselves this question, and, if so, what their answer is.
 

Accompanying articles in this cover story make clear that not all the ulema and not all members of the Board accept triple talaq as lawful. Besides, the triple talaq practice is today unlawful in an overwhelming majority of Muslim countries, even though Islam is declared to be the State religion.
 

For the first time since its inception in 1972, the AIMPLB resolved in its meeting of July 4, 2004 to take some concrete, if highly inadequate, steps to give justice to Muslim women. The Board resolved:
 

(1) To launch a nation-wide campaign to create awareness in the Muslim community that the prevalent practice of triple talaq was wrongful and to educate them on the Islamic way of divorce.
(2) To prepare and popularise a model nikahnama that both husband and wife be asked to sign at the time of marriage, committing themselves to not seeking a divorce except in the correct Islamic way as spelt out in the model nikahnama.
(3) To ensure that Muslim women get a share in agricultural property.
(4) To establish Darul Qaza (Islamic courts) in different parts of the country to settle marital disputes and to strive for constitutional status to these courts (so that its orders become legally enforceable).

The Board has fallen between two stools. These resolutions have left the Muslim fundamentalists aghast at the very thought that the AIMPLB is contemplating the unthinkable: bringing any change in Muslim Personal Law.
 

On the other hand, the proposed measures have not impressed women’s groups and other secular organisations in the least. And this is so for several reasons.
 

So long as you keep reiterating the position that triple talaq is good in law but bad in theology, what would be the efficacy of any campaign against it, even assuming (and this is a very big assumption) the Board has the machinery to run a nation-wide campaign and the mechanisms to ensure its success. As for a model nikahnama, the same Board has been sitting on a model nikahnama suggested by some of its own members for ten years. How many more decades before an approved nikahnama goes into mass circulation? How do you create mass opinion in its favour?

There now seems to be a near consensus among the upper echelons of the judiciary that unless it is for a reasonable cause and is preceded by efforts at reconciliation, talaq is un-Islamic and unlawful.
 

No less objectionable is the fourth resolution, asking for a religious body to be integrated as part of the judicial apparatus in a secular State. How can any secular State grant such legitimacy to any religious organisation? How would anyone react to the demand for a Hindu Dharam Sansad as an integral part of the courts set up in India?
 

The only saving grace in these four resolutions is the one concerning restoration of Muslim women’s right to agricultural property. It is a welcome development for more than one reason. In demanding fresh legislation to ensure Muslim women’s rights to agricultural property (a right that has been denied to them since 1937 with the connivance of the ulema), the Board will nullify the oft-repeated though baseless claim that any change in Muslim Personal Law is interference in God-given laws.
 

Even as there is endless debate over whether those concerned with gender justice should engage with or ignore the Board, victims of triple talaq (Muslim women) have kept knocking at the doors of constitutional courts in search of justice. And surprisingly, though neither the media nor the Muslim masses have awakened to its implications, a big, big change is evident here.
 

It is clear from a spate of judgements by the high courts and even a division bench of the Supreme Court since 1998 that the upper echelon of the judiciary is no longer willing to buy the "bad in theology, good in law" line of the ulema. (The accompanying article by Flavia Agnes refers to several of these judgements). There now seems to be a near consensus among them that unless it is for a reasonable cause and is preceded by efforts at reconciliation, talaq is un-Islamic and unlawful.
 

What this could mean for a victim of arbitrary talaq is best understood from a brief recount of the September 18, 2002 judgement of a division bench of the Supreme Court comprising Justice RC Lahoti (now Chief Justice of India) and Justice P. Venkatarama Reddi in the case of Shamim Ara v. State of UP and another, (2002) 7 SCC 518.
 

Shamim Ara from Allahabad got married to Abrar Ahmed in 1968. In 1979, she filed an application before a family court seeking maintenance from her husband under Section 125, CrPC, on the ground that he had deserted her.
 

In 1990, the husband filed a written statement to claim he had divorced her in 1987 and so she was not entitled to any maintenance. Accepting the husband’s contention that she had already been divorced, the family court, in its judgement in 1993, dismissed the wife’s plea for maintenance.
 

On her appeal, the high court (Allahabad) held that the communication of talaq stood completed in 1990 with the filing of the written statement by the husband.
 

But on September 18, 2002, the Supreme Court ruled that "neither the marriage between the parties stands dissolved on December 5, 1990 nor does the liability of the husband to pay maintenance come to an end on that day. The husband shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law."
 

The judges held that the mere plea of a husband of having divorced his wife sometime in the past was of no use as, "There are no reasons substantiated in justification of talaq and no plea of proof that any effort at reconciliation preceded the talaq".
 

The courts of secular India are the only hope for the countless victims of triple talaq.

Archived from Communalism Combat, July 2004 Year 10   No. 99, Cover Story 1

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Nazma Bibi, Orissa

The couple then approached the maulvi, the religious priest of Dhamra, to get his holy interpretation/judgement on the incident. After hearing both Nazma and her husband’s versions of the case, the maulvi decreed that the talaq was invalid since the husband had uttered the words ‘talaq, talaq, talaq’ in a drunken state.
 

But the community refused to accept the maulvi’s judgement declaring that the maulvi was ‘not qualified to give such a judgement’. By then the issue had been commandeered by a powerful local leader, Bari, who clearly did not appreciate ‘outside’ (i.e. the court or women’s organisations) interference. Bari claimed that his ‘NGO’ had settled 100 cases (all of which went against the women).
 

Mohammed Seru’s family then approached another maulvi, of Bhadrak, for further consultation and advice. He said that the talaq was valid and if at all Nazma wanted to stay with Seru, she had to first go through halala (i.e. marry another man, consummate that marriage and then go through a divorce) before returning to her first husband.
 

However, Nazma rejected the idea of halala and was forced to abandon her home, taking shelter at a short stay home, Ashiyana, in the town itself. Nazma’s husband then proceeded to a family court at Cuttack where he prayed for restoration of his conjugal rights. In a verdict given on December 13, 2003, the family court dismissed the talaq as illegal and ordered for restoration of the marriage as well as Nazma and Seru’s conjugal life as a couple.
 

But the local Muslim community to which Nazma belonged refused to accept the court order and was adamant in their opposition. The couple then cut all ties with immediate relatives and found a place outside the community where they stayed together for three months. Three months later, when the couple visited Nazma’s mother at Kantabania, a village some miles away from Bhadrak, some persons from the Muslim community physically assaulted and manhandled Seru.
 

In their continuing quest for justice, the couple ultimately approached the National Commission for Women (NCW). Two members of the NCW went to Bhadrak on May 21, 2004, and instructed both the collector and SP of Bhadrak to ensure that the victim couple could live together. Nafisa Hassan, a minority member of the commission, declared that since what the couple had undergone was not talaq, they should be allowed to stay in the woman’s parental house and police protection be provided to them. But after this measure of relief had been provided to the couple, an altercation between members of the NCW and local leader, Bari, further aggravated the situation. Members of the NCW stated that it was the people’s fundamental right to live wherever they wanted; the police could get an outside mufti to decide the case if necessary. Bari threatened the NCW, saying that they had no right to interfere in matters of the community whose members would conduct themselves as they saw fit. Bari stipulated that the couple could not continue to stay in Nazma’s parental home. As a result, community members adopted a more rigid stance and in spite of a few sincere efforts by the police and local administration the couple could not stay together for a while.
 

The community blatantly used compulsion and force to separate the couple. Nazma then had to face social boycott by being denied water and fire for everyday use. Water connections were cut off, her child was not allowed to go to school, and her father was prevented from earning his livelihood – he was a rickshaw-puller in Bhadrak.
 

It was at this stage that persons from the Centre for Women’s Studies of Utkal University as well as the All India Democratic Women’s Association (AIDWA) intervened. It was their members, Muslim and other women who offered solidarity to Nazma and her family, who carried out negotiations locally. This solidarity at the grassroots compelled the local administration to provide Nazma with water and ensure that her child was no longer prevented from attending school.
 

On July 25, 2004, AIDWA and Centre for Women’s Studies took the issue further by organising a widely attended seminar on ‘Dialogue on Talaq’ at the Utkal University campus. The seminar passed a unanimous resolution to a) receive a delegation of prominent (and locally chosen) dignitaries to visit Bhadrak and dialogue with the local community by August 3, 2004; b) demand that the state government provide Nazma with financial support. In response to the second demand, Rs. 20,000 has already been released for Nazma’s use.
 

(Report from AIDWA, an all India women’s organisation).

Archived from Communalism Combat, July 2004 Year 10   No. 99, Cover Story 3

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Rahmathnisha, a resident of Thirupattur in Sivagangai district, Tamil Nadu, was married to Varusai Mohamed from Karaikudi in the same district in 1989. Her husband works as an assistant engineer in Tamil Nadu State Transport Corporation at Karaikudi. She has a son, Syed Anwar Ali, who is now 14. Rahmathnisha lived with her husband for ten years. During her life with her husband she suffered great torture at the hands of her husband and his family. Her husband had affairs with two other women while he was married to Rahmathnisha. Rahmathnisha could not tolerate his infidelity and complained to her mother-in-law but her in-laws did not see anything wrong with their son’s behaviour, excusing his conduct as common amongst men who worked in government departments. Rahmathnisha was not allowed to leave the house or interact with neighbours and relatives. She was practically under house arrest and made to live the life of a slave.
 

One day she happened to see her husband having sexual intercourse with another woman. She was extremely upset and lost her temper with her in-laws. Her in-laws’ response was menacing. They started mixing slow poison into the food meant for Rahmathnisha and her son; both of them had severe stomach cramps and were very ill. As the harassment continued and both her life and that of her son’s was at risk, Rahmathnisha left her in-laws’ house secretly and returned to her parents’ home. This was in the year 2000. After Rahmathnisha left, her husband made a complaint to the Kattuthalai Jamaat stating that she had put sleeping pills into their food and stolen jewels from their house. Discussions were then held with the Thirupattur and Kattuthalai Jamaats to determine the facts. In 2001, while Rahmathnisha was living with her parents, her husband sent a talaq letter to both the Thirupattur Jamaat and his wife. Since Rahmathnisha had her suspicions about what the letter contained, she refused to accept it and it was returned unopened. Again, lobbying between both Jamaats took place. During these discussions Rahmathnisha expressed her wish to live with her husband and requested the Jamaat to advise her husband to avoid relationships with other women. But that did not happen. Rahmathnisha wanted to live with her husband and had believed that her husband would come back to her. Discussions took place between the two Jamaats about the talaq letter and in July 2003, a settlement was arrived at. Varusai Mohamed promised to pay Rahmathnisha Rs. 42,000 but wanted her to sign a document stating that she would not claim anything for her son as heir to Varusai Mohamed’s property in the future. Rahmathnisha’s family could not accept this meagre amount and did not sign the documents or accept the money. In turn, they sent a request through the Thirupattur Jamaat claiming Rs. 1,00,000 as compensation. But Rahmathnisha was still very keen to live with her husband if he promised to change.
 

Meanwhile, Varusai Mohamed had already handed over Rs. 42,000 along with all the vessels and household things that Rahmathnisha had used to the Kattuthalai Jamaat and decided that he had fulfilled his commitments to his wife. Even before the two families had arrived at a final settlement, Varusai Mohamed had married another woman, also from Sivagangai, in May 2004. Rahmathnisha then lodged a protest with the Kattuthalai Jamaat, which had given Varusai Mohamed a no objection certificate for his second marriage. To that the Jamaat responded by telling Rahmathnisha that undergoing talaq was small change, an everyday matter worth one-and-a-half paise, and asked her why she was raising such a hue and cry about it. Since she did not receive a responsible answer from the Jamaat concerned, Rahmathnisha approached STEPS in July 2004 so as to punish her husband for entering into a second marriage and for doing so even before their divorce was final.
 

STEPS wrote to the Kattuthalai Jamaat asking them for an explanation for the NOC issued to Varusai Mohamed, and another letter to his employer. The Kattuthalai Jamaat sent STEPS a threatening reply, indicating that merely sending a letter could convey talaq, irrespective of Rahmathnisha’s opinion. So Rahmathnisha filed a case against her husband at Karaikudi women’s police station. But after consulting a lawyer, the inspector concerned said that since a second marriage was permissible in Islam, the criminal law did not apply to Muslim men in this regard. The police suggested a compromise instead. Ultimately, Varusai Mohamed was willing to pay Rahmathnisha Rs. 85,001 and asked her to sign an agreement declaring all settlements between them as having concluded. Rahmathnisha was still keen that her husband be punished for his actions and wanted to file an FIR against him. But the male members of her family did not want this, the long wait if the case went on for years in the future. They forced her to agree to the compromise and accept the amount that her husband was offering her today.
 

(Report from STEPS, an organisation of Muslim women with a presence in several districts of Tamil Nadu).

Archived from Communalism Combat, July 2004 Year 10   No. 99, Cover Story 6

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Heated reactions and debates on reservations for Muslims, conjuring up images of communal polarisation and Partition, deliberately ignore the fact that secular India has not given Muslims a fair deal

Reservations, and that too for Muslims?

This could well be the stated or unstated reaction of many Indians (not just sanghis) to recent moves by the newly elected Congress government in Andhra Pradesh to provide reservations for the Muslims in the state to the extent of 5 per cent and their inclusion in an additional and separate category of backward classes in the state. (The AP government has now withdrawn its first G.O. and assured the AP high court that it will modify its order so that reservations for large sections of the Muslims are brought under the overall ‘social and economic backward classes category’ and limited to the overall ceiling of 50 per cent).

The cat, however, is out among the pigeons. The issues raised by the AP government’s G.O., be it on the specific issue of reservations for Muslims as Muslims, or reservations per se, cannot be left to the safety of seminar rooms and private discussions any longer.

Consider this. Having given ourselves a Constitution in 1950, we began our serious engagement as a society, a people and a civilisation with inviolable notions of human dignity enshrined in the right to life, freedom, equality, non-discrimination, freedom of faith and so on. Even as we entered into this solemn contract we recognised our flaws and failings and that is why at the outset we enacted sub-sections as amendments to the initial Articles: Articles 15 (4) and 16(4-A) in 1951 and 1995 respectively.

These Articles in the section on fundamental rights, including Article 16 (4), which has been there since the inception of the Constitution, qualify the articles on ‘prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’ (Article 15) and ‘equality of opportunity in matters of employment’ (Article 16) by empowering governments to make special legislative provisions for scheduled castes and tribes and socially and educationally backward classes (SEBC) of citizens.

The drafting history of Article 16 (4) reveals that all members of the Constituent Assembly, which included Vallabhbhai Patel (the chairperson of the committee), KM Munshi and Shyama Prasad Mukherjee among others were unanimous in their opinion that ‘socially and economically backward classes of citizens’ included minorities as a category. A serious apprehension then expressed by Frank Anthony at the ‘non-inclusion specifically of the term minorities’ should seriously prick all Indian consciences if one pauses to consider the plight of minorities today.

Why has the crucial drafting history of this Article not influenced, in any way, judicial pronouncements, political discourse or executive action in post-Independence India? Has there been in any sense a silent denial of not simply the political de-privileging of India’s largest minority, Muslims, but a denial compounded by an absence of serious concern over the Indian Muslims’ socio-economic index?

The debates in the Constituent Assembly that began in 1946 and concluded with the final draft of the Indian Constitution in October 1949 were conducted in parallel with a violent upheaval on the ground. That upheaval was bitter and bloody with unprecedented communal bloodshed resulting in Partition.

This is what, we are told, influenced the tenor and spirit of the Constituent Assembly debates and led to the inclusion, non-inclusion, specification and non-specification of crucial issues relating to the political safeguards for the minorities (See box, Pages from our past.) Ironically, the religious safeguards, including the non-interference of a ‘secular’ State in the personal laws of religious communities, a non-interference that has directly impinged on the rights of all women, was vigorously debated and demanded by Muslim leaders.

These political safeguards that earlier were sought to be included and figured in the first draft of our Constitution, published in February 1948, have a specific relevance when we consider the abysmal social and economic indices of the Muslim community in India today. Among the political safeguards included and then dropped was that of representation (not reservations) of all minorities in central administrative and provincial services, with the further stipulation of a Special Security Officer at both the central and provincial levels to monitor and report on the status of minority presence in the services.

The National Sample Survey conducted in 1998 reveals shockingly that though Muslims are more than 12 per cent of the total population, the representation of Muslims in the IAS is only 2.86 per cent and in the IPS, 2 per cent. A shocking 52 per cent Muslims live below the poverty line as compared to 30 per cent of other Indian communities. Worse still, their representation in government jobs, armed and police forces, and Indian administrative and foreign services (IAS and IFS), has at no time exceeded 4.5 per cent during the last 50 years.

Contrast this to the zippy run-up and in swing of Irfan Pathan, from a bruised and battered Vadodara in Gujarat, who is among the icons of Indian cricket nationalism today. Or the Aamir, Shah Rukh and Salman Khans, who are the heartthrobs of millions! Clearly, in fields and arenas of free and fair play, Muslims can and do excel on their own and need no prop.

It is where the Indian State has a role and responsibility, whether in building enough of the right kinds of schools in areas where Muslims reside (a similar disinterest is noticed when it comes to Dalit or Tribal education) rather than police stations, or in employing Muslims in public services that the Indian State has well and truly failed.

The issue of the absence of Muslim presence in state and central administrative and police services, the army even, as also the issue of the social and economic backwardness of the community as a whole is not an issue of only Muslim concern. Fifty-seven years down, if we consider ourselves an enlightened democracy, a stable democracy, the socio-economic index of the largest Indian minority ought to be a concern for all of Indian society because this ultimately is the litmus test of both enlightenment and stability.

At another level, however, there remains the critical issue of the ‘creamy layer’ among Muslims, that is strongly voiced in the opinions of people like Shabbir Ansari of the All India Muslim OBC Federation and Eijaz Ali of the All India Backward Mocha – United. (See accompanying articles). Both for the reasons so eloquently put forward by them, as much as for the fear that such reservations may actually heighten communal polarisation, it would be well to frame the argument for reservations in terms of social and economic backwardness and not in religious terms.

But to speak of the Muslim socio-economic index and argue for reservations for the socially and economically backward among them while we remain silent on the issue of adequate representation for Muslims as Muslims in critical public areas as mentioned above, would, I think, be, as it was 57 years ago, missing the wood for the trees.

Let’s face the facts. Serious cracks have threatened the very fabric of Indian democracy and these have developed around the critical issue of the inability of the State to adequately protect the life, property and dignity of its religious minorities, both Muslim and Christian.

For the Muslim or the Christian, be she or he from Malabar Hill in Mumbai, Naroda Patiya in Gujarat, or Jhabua in Madhya Pradesh, life or survival with dignity are constantly under threat. Faced with these nascent trends in the early eighties itself, the National Police Commission (1981) had voiced its view against reservations in the police force but clearly stated: "The composition of the force should reflect the general mix of communities as it exists in the society and thereby command the confidence of different sections of the society."

What has any government done to implement this recommendation? Instead, we have a state like Gujarat that has systematically disenfranchised Muslims out of the police and state administrative cadres over the past decade (See Genocide Gujarat 2002, Communalism Combat March-April 2002).

The issue of a rich and varied, multicoloured Indian police, Indian administrative service, Indian army, as also the average school classroom is, or should be, as much of a concern for Hindu India, because it is an issue related to the revival and revitalisation of Indian democratic institutions and Indian democracy – not merely because it also means giving a fundamentally better deal to Indian Muslims.

And while on the subject of religion-based reservations, a well-concealed fact that needs to be admitted into the debate and rhetoric is the constitutional and unfair privileging of Hindu, Sikh and neo-Buddhist scheduled castes even as the Dalits among Muslims and Christians are denied their fair share on grounds of their faith.

(There are other Indian laws, too, that unfortunately privilege the Hindu majority including sections of the Hindu Undivided Family norm that benefits Hindus under the Income Tax Act as also the late seventies’ amendment to the Special Marriages Act that privileges the Hindu partner in a ‘secular’ marriage but I will not go into these details here.)

The whole issue of reservations per se has caused much resentment among the middle class youth who perceive this practice as a denial of their fundamental right to education, employment and promotion based on merit. In a country like India, with wide disparities in class, caste, region, etc., where there are just too many candidates for the proverbial share of a limited and shrinking cake, what should the outer limit on reservation be? Put differently, how many seats should there be for the ‘open’ category?

Resentments over job-driven reservations also simmer as latest National Sample Survey data shows a much higher unemployment among ‘educated youth’ (8.8 per cent) than among the illiterate (0.2 per cent) and semi-literate category (1.2 per cent).

The SC had ruled, after the Mandal Commission report was accepted and the agitation that had followed, that the outside limit on reservations ought to be 50 per cent. But in many educational institutions, all told, the reserved seats add up to a staggering 80 per cent. The irrational, non-standardised and non-examined application of government policy/ruling on this crucial issue builds up resentment as much as the declaration of public policy without sufficient public debate and the seeking of consensus.

Within the debate, we also need to address the fact of influential castes seeking political favours. The last NDA government wooed the Jats of Rajasthan by including 130 more categories as backward classes under the Mandal category, as a cover for giving Jats the benefit. And former Congress chief minister, Ashok Gehlot of Rajasthan contemplated giving the economically backward among the savarnas reservation to elicit their influential support. In both moves, the raison d’être behind the concept of reservations as contained in Articles 15 (4) and 16 (4) and (4-A) became seriously flawed and vitiated.

It was the issue of centuries’ old discrimination, denial and oppression by a caste Hindu society that lay behind the reservations granted as a constitutional right, not privilege, to both SCs and STs. The issue of generational under-privileging sanctified by the caste structure affected the construction labourer, the agricultural labourer, the manual scavenger, the sweeper, the rickshaw-puller, the cycle and car mechanic, the brick kiln worker, the butcher, the weaver, etc. etc. They were denied all manner of basic human rights: the right to existence, livelihood, education, freedom and health.

A socio-economic examination of these sections of the underprivileged reveals for those of us who wish to see it that these sections among our underprivileged are also, for the most, Dalits, Tribals, other backward castes, and also Christians, Muslims, Hindus, Sikhs and neo-Buddhists. A fair examination reveals that 57 years have not been enough to level the playing field.

Debates on the pros and cons of reservations would do well to consider that.

Archived from Communalism Combat, July 2004. Year 10, No. 99, Special Report 1

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Their representation or proportion in education, services, judiciary is sometimes as low as less than one per cent and hence it is clear that some pro-active affirmative action is necessary.
 

The Christian leadership, which finally opposed religion-based reservation at the conclusion of the constituent assembly debates, met over this issue and has resolved to support the Muslim community in their decision, whatever it may be.
 

More importantly, we have discussed how, independent of State and government, we must involve ourselves in the uplift of the Muslim minority in India. We have discussed with the leadership how more convent schools need to be opened in Muslim-dominated areas so that Muslim girls can attend school within the safety of the convent. We have discussed how we should join hands to exert pressure on the government for more government technical schools to be opened in Muslim-dominated areas and how Wakf Boards can be encouraged to not only support moneyed and fashionable medical and engineering colleges but technology-based and polytechnic institutions.
 

At the conclusion of the debates within the constituent assembly, Jerome D’Souza ultimately refused religion-based reservation, satisfied that the interests of a minority could be well served without religion-based services. Christian representation at 2.5 per cent overall has recently begun to decline, however. Within this there is a domination of the Kerala or Naga Christian. To respond to this trend we have prepared a memorandum for the government so that Christians remain, not simply cooks and mechanics, but owners of restaurants and hotels and professional outfits.

List of demands put before the new government by the AICC:

1. Urgent steps to ensure that minority educational institutions are assured their autonomy at all times.

2. A permanent empowered Equality Commission/Equal Opportunities Commission to deal with the issues related to exclusion and discrimination.

3. Commission on backwardness and representation of religious and linguistics minorities in national life.

4. Benefits of affirmative action of the State to be available to all persons belonging to SCs irrespective of faith.

5. A comprehensive Central Law on Communal Violence for (i) Prevention (ii) Control (iii) Prosecution (iv) Adequate Compensation & Rehabilitation as recommended by the Concerned Citizens Tribunal 2002.

6. Basic reform of the police system to make it function independently, accountable in law for impartial law enforcement on the lines suggested by the National Police Commission (NPC 1978-81).

7. Basic reform of the administration of the justice system especially of the subordinate judiciary for delivery of prompt untainted justice.

8. Use of force and firearms by the police to be brought into conformity with human rights standards.

9. A comprehensive Right to Information law to make governance transparent and accountable.

10.  Review of the electoral system introducing measures enabling under-represented segments like women, religious minorities and certain social groups to get due representation in legislatures and other elected bodies.

Archived from Communalism Combat, July 2004. Year 10, No. 99, Special Report 4
 

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Clause (5) of the Fundamental Rights Sub-Committee Report providing for ‘’equality of opportunity in matters of public employment’’ came up for consideration before the Advisory Committee under the chairmanship of no less a person than Sardar Vallabhbhai Patel between 17 and 19 April, 1947. There was a rigorous discussion on whether the classification of social and economically backward classes per se included minorities. There was unanimity among all that it did as far as Article 16(4) is concerned and disagreement only whether specification of ‘minorities’ was required.
 

When it came up for discussion, Clause (5) as recommended by the Fundamental Rights Sub-Committee was the most important clause, and it was given due consideration by the Committee. That Committee consisted of stalwarts like C. Rajagopalachari, KM Panikkar, Shyama Prasad Mookerji, Frank Anthony KM Munshi and many such legal luminaries.
 

Shri C. Rajagopalachari suggested making the provision explicitly for the minorities instead of ‘classes’ as it is provided now. Shri Rajagopalachari told the Committee on a specific clarification about it as to whether it was the classes or minorities who were being given protection. Shri KM Panikkar, who was responsible for the initial changed words explained that besides recognising religious minorities there might be many classes amongst the Hindus not adequately represented. According to him, they had also to be given reservation.
 

In this connection Shri Shyama Prasad Mukherjee suggested the phrasing ‘minorities and other classes’ instead of simple ‘classes’. That was the suggestion made by Shri Shyama Prasad Mukherjee. Again, Sardar Ujjal Singh, who was a member of that Committee suggested ‘minorities and backward classes’ without any reference to adequate representation. Shri Frank Anthony said that it should be ‘classes and minorities’. This was the discussion that took place in that meeting. Sardar Vallabhbhai Patel observed that ‘classes’ included ‘minorities’. So, according to the drafters of the Indian Constitution, looking at the discussions by this Committee, under Article 16(4) of the Constitution wherever ‘classes’ has been mentioned, it includes ‘minorities’.
 

"The Advisory Committee was chaired by Sardar Vallabhbhai Patel when the matter was taken up for discussion. The Advisory Committee met for the second day in the council’s chamber of the Council House in New Delhi at 10 a.m. on April 22, 1947. Sardar Vallabhbhai Patel was in the chair. When the discussion was initiated, there were a number of observations made by the hon. members of the Committee like Sardar Vallabhbhai Patel, Shri Rajagopalachari and others.
 

"Frank Anthony: I would like to suggest that the clause should be amended ‘nothing herein contained shall prevent the State from making provision for reservation in favour of minorities or classes.
 

Ujjal Singh: It should be ‘classes’ over ‘minorities’.
 

Frank Anthony: What is the objection to ‘classes and minorities’? ‘Classes’ will refer to the Scheduled Castes.
 

C. Rajagopalachari: It is sufficiently described here – ‘those who are inadequately represented’.

Frank Anthony: Why should we fight shy of using a word which has the sanction of law and usage? We can make it more specific.

C. Rajagopalachari: Just as we do not say, ‘citizens and persons’, if one word is wider, we omit the smaller word.
 

Frank Anthony: We can put it as ‘classes including minorities.
 

Chairman (Sardar Vallabhbhai Patel): ‘Minority’ is included in ‘classes’.
 

Frank Anthony: This is my amendment. I move in favour of ‘classes and minorities’.
 

Ujjal Singh: ‘Minorities and backward classes’.
 

Chairman: This is simple English. ‘Class’ includes ‘minorities’. This is absolutely unnecessary. It is as clear as daylight."
 

"The Committee has come to the unanimous conclusion and we also feel classes include minorities. There is no need to suspect. The whole basis of the provision is minorities. You say the State will exclude minorities?"
 

This is what Sardar Vallabhbhai Patel asked the Committee when Article 16(4) was under discussion of the Advisory Committee. Sardar Vallabhbhai Patel had taken the stand that the classes would include minorities. He said that there was no need to suspect and that the whole basis of the provision is minorities. Again I would like to quote:
 

"Frank Anthony: We are not suspecting the present leaders. We do not know who the future leaders would be.
 

Chairman: No leader would be so stupid as to interpret that classes do not include minorities.
 

Frank Anthony: We are not suspecting the present leaders. We do not know who the future leaders would be.
 

Chairman: No leader would be so stupid as to interpret that classes do not include minorities.
 

Frank Anthony: We have used the words elsewhere.
 

Chairman: Anybody will say that ‘’classes’’ is a wider term. It is better to use a wider word.
 

C. Rajagopalachari: I would appeal to him that according to the ordinary interpretation if you introduce the word minority, the question whether a class is a minority will become justiciable. Classes will be interpreted in the sense of minority. The use of the general term ‘classes’ is followed by the phrase ‘not adequately represented’ and the opinion of the State finally determines it. I think, this is the best way of solving it.
 

KM Munshi: In Section 153 A, the term ‘class of His Majesty’s subjects’ has been used. ‘Classes’ have been interpreted as minorities or religious communities also. Nobody has ever interpreted it as not meaning minorities."
 

(From the Constituent Assembly Debates The Framing of India’s Constitution by Dr. B. Shiva Rao).

Archived from Communalism Combat, July 2004. Year 10, No. 99, Special Report 7
 

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