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Muslims, Affirmative Action and Secularism

Attempting a Possible Reconciliation

Zubair Ahmad Bader (ahmadzubairb@gmail.com) teaches at the Department of Political Science, Kashmir University.

Religion-based preferential treatment in the services of the state is generally argued to be in contradiction with secularism. As a result, the Indian state has relied on a non-preference, non-discrimination framework to address the issues of backwardness and under-representation of Muslims. This article attempts to partially reconcile the contradiction between religion-based preferential treatment and secularism, and it is argued that the determination of welfare policies for religious minorities, particularly Muslims within the non-preference, non-determination framework, either has to be justified in the public philosophy of the state or social justice has to be given a relative preference to secularism, especially when the policies formulated within the non-preference, non-discrimination framework have not proven to be effective in targeting the relative backwardness of Muslims.

The Indian state for the most part has used a non-discrimination, non-preferential framework for the religious minorities to address the issues of identity, deprivation, backwardness, and insecurity. The constitutional framework at the inauguration of the republic focused specifically on addressing the issues of equity and representation of religious minorities through the general public policies and provisions, which were intended to be applicable equally to all the citizens without privileging any particular marker of identity over others. In this context, it becomes necessary to recognise that this framework instituted during the constitution-making process relied on a foundational basis of sociocultural differences that was completely indifferent to the disadvantages these differences could inflict on the religious minorities.

The notion of differences in the Constituent Assembly was understood in sociocultural terms and did not indicate any inequality in wealth, status, and power. Such an understanding did not recognise the hierarchical relationship and the logic of socio-economic superiority and inferiority within the religious minorities, as the internal differentiation of the religious communities was supposed to be horizontal in nature, with no real socio-economic disparities between internal caste categories. On the other hand, groups like Scheduled Castes (SCs) and Scheduled Tribes (STs) were not only considered to be culturally different, but also at a disadvantage with respect to other communities. The differences, in reference to SCs and STs, were understood mainly in terms of inequality, which was associated with caste, as it stratifies the society in a hierarchical order with the respective diminution in wealth, status, and power as we move down. Therefore, the socio-economic inequality that was seen attached to groups like SCs and STs was referred to as historical disadvantage. The notion of differences was, thus, set apart from the notion of disadvantage as historical injustice and the source of socio-economic inequalities. The perceived basis thus became responsible for different social and political arrangements for addressing the notions of differences and disadvantage.

The notion of citizenship that was eventually envisaged was a differentiated conception informed by the group differences and disadvantage, whereby disadvantage rather than differences remained an indispensable principle of this framework (Bader 2015). The notion of disadvantage not only demanded the recognition of their differences, but also a deliberate redistribution of economic resources. Hence, a notion of differences can be assumed to be already contained in the notion of disadvantage (Bader 2015).

With respect to differences, the allocation of economic resources was to be achieved through a non-preference, non-discrimination framework, whereby the resources were to be distributed through the equality of opportunity principle without giving preference or privileging one social group over the others, and the resources were equally available to all the citizenry. The entitlements in this framework were given an institutional expression in the form of cultural safeguards for the religious minorities. On the other hand, the entitlements that are based on disadvantage find a very wide institutional expression in the form of preferential treatment for SCs and STs. Therefore, the non-preference, non-discrimination framework can primarily be understood in cultural terms, where the state is not directly involved with the political and economic affluence of the religious minorities as it is concerned with the SCs and STs, and therefore the argument that this differentiated notion of citizenship is based more on the notion of disadvantage rather than on differences.

This notion of “differences” and “disadvantage” has shaped the commitment of the postcolonial state towards the conception of equality and defines the nature of social justice through policy initiatives and state interventions for the SCs and STs, and recognition and protection of the religious identity of religious minorities. This constitutional underpinning in the postcolonial Indian state has to a large extent shaped the public opinion against the preferential treatment policies for the religious minorities. The state’s reluctance further stems from its preoccupation with secularism, national unity, equality, and other principles, particularly the incompatibility of religion-based preferential treatment with the governing principle of secularism. This reluctance also stems from the fact that all the religious minorities, except for Muslims, have gained significant materialistic affluence; that the argument of disadvantage and consequential preferential treatment in the public employment for the religious minorities as communities lacks any significant clout.

All these factors have been shaped into a legitimating vocabulary, which the state has invoked in its justificatory arguments for assuming a non-discrimination, non-preferential framework for the religious minorities, particularly Muslims. There exists a consensus among political parties, leaders, and intellectuals with regard to preferential treatment for protecting the  disadvantaged, who in their view have accumulated certain disabilities from historical injustice and oppression, in contrast to the religious minorities who have to be set apart from this historical injustice and oppression, although there is mounting evidence of their deprivation and accumulated disadvantage (Hasan 2011: 43). Moreover, this debate of disadvantage and preferential treatment has an underlying foundation of backwardness in the postcolonial Indian state, which has primarily been identified with caste and not religion. While there have certainly been pro-poor policies, the poverty and backwardness of Muslims has, however, been approached within the non-discrimination and non-preference framework, and specifically within the frame of general social welfare.

Therefore, caste categories—other than SCs and STs—from religious communities that are considered backward, rather than religious categories per se, have been identified and extended recognition as the categories deserving of preferential treatment. Their backwardness, argues Bajpai (2010), has been construed not so much as economic as it has been considered social in character, emanating from the traditional caste hierarchies. This backwardness is indicative of the powerlessness of these groups, which is inflicted upon them by the caste hierarchy and, therefore, the principle aim of this recognition is to remove their powerlessness. This recognition relies on the foundational basis of social justice where social disabilities rather than economic deprivation are being attended to, which largely is the consequence of social hierarchies, rather than economic arrangements; the incidental aim of which would automatically amount to improving the economic conditions of the beneficiaries (Bajpai 2010).

The underlying idea set the framework of recognition apart from what was envisaged during the Constitution-making process in the sense that approaching the disadvantage in the Constituent Assembly was conceived mainly in terms of the reduction of socio-economic disparities between the groups, whereas the emphasis now was on reducing the inequalities in status and power of the groups (Hasan 2011: 89). This, however, does not mean that economic inequalities and the underlying idea of reducing these inequalities have not been taken note of in the vocabulary in favour of instituting preferential treatment for the Other Backward Classes (OBCs). A distinct strand of debate regarded economic inequality as a more concrete basis of extending preferential treatment in public employment. The disadvantage within this strand that quotas sought to rectify was associated more with economic inequalities, mainly in the distribution of economic resources, and their consequences for the opportunities and life chances of individuals, rather than inequalities of status (Bajpai 2010).

This article forms an attempt to analyse the efficacy of the efforts made by successive governments outside the non-preference, non-discrimination framework to address the issues of backwardness and poverty among Muslims. In the process, it seeks to understand different strands of arguments that have been advanced in favour of the extension of preferential treatment to the OBC category. In the following section, it also seeks to analyse the attempts to extend preferential treatment to Muslims under the OBC category and its efficacy for Muslims. In this context, an active state intervention becomes necessary, particularly when their inclusion in the OBC category has proven to be ineffective. However, since religion-based preferential treatment is argued to be in contradiction with secularism as a governing principle, the article proceeds to achieve the primary objective in the final section, which attempts to reconcile this contradiction between religion-based preferential treatment and secularism.

Muslims and the Category of Other Backward Classes

The constitutional protection extended to the religious minorities for protecting their cultural and religious freedoms has not been adequate in providing equality of opportunity and guaranteeing the necessary opportunities in education, employment, and politics that would enable Muslims to fully realise citizenship in practice (Williams 2012). While these provisions go a long way in protecting the minority cultures, language, and religion, the state by and large has been reluctant to facilitate their public participation through preferential treatment. In this context, Zoya Hasan (2011: 41) argues that economic empowerment of religious minorities has exhibited the lack of attention from the state, which has exacerbated the issues of institutionalised inequality and deprivation much more than is commonly supposed.

However, the commitment of the postcolonial Indian state towards a greater socio-economic equality and the overall nation-building process provides significant clout for the inclusion of lower-caste Muslims, who are generally situated low on the economic ladder, in the OBC category. Some Muslim groups have also been able to accrue socio-economic benefits from the preferential treatment policies as they are included in the ST category. None of the Muslim groups have, however, been included in the SC category as this category has been restricted to Hindus, Sikhs, and Buddhists. Therefore, as far as the constitutional permissibility for their inclusion in various categories specified for preferential treatment by the Constitution is concerned, Muslims can only benefit from the opportunities available through the OBC category (besides the general category, of course), since there are by far too few Muslim STs in India who can be considered to benefit substantially from the opportunities available through the category of ST and affect the social status of the community in any significant way. Therefore, the relevance is restricted to the following questions: How does the expression of preferential treatment for OBCs affect the Muslims as a community? How far has the inclusion of socially-backward Muslims in the OBC category enhanced the overall socio-economic status of the community?

Caste Differentiation among Muslim Community

According to the 61st round of the National Sample Survey Office (NSSO), OBCs constitute 40.4% of the total population of India, of which, Hindus constitute 34% and Muslims constitute 6.4%. The inclusion of traditionally backward castes among the Muslim community in the OBC category may be regarded as a tacit recognition of the caste differentiations in the Muslim society. Muslims who were specified as backward belonged to the caste categories that usually constituted the occupational groups of traditional Ajlaf and Arzal categories, such as weavers, oil crushers, cotton crushers, carpenters, washer men, and barbers (Mondal 1996; Hasan 2011).

However, following the acceptance of the recommendations of the Mandal Commission, only those castes which were specified as backward in both the state backward list and the Mandal Commission list were specified in the central backward list and made eligible to avail the benefits of the opportunities available through the central backward category (Sachar 2006: 200). This resulted in a situation where a large number of caste groups did not find any mention and were left out of the ambit of the category (Sachar 2006: 200). However, swerving quite significantly from the reluctance of the national governments, some states manifested greater urgency towards ensuring greater equality, and implemented preferential treatment in the services of the state for Muslims as a community, with some extending the preferential treatment for Muslim OBCs only.

Kerala was the first Indian state to introduce a preferential treatment policy for its backward population in 1952. However, significantly different from what was a religion-based quota in colonial India, the new system of preferential treatment was caste- and religion-based with 45% of the seats in public services reserved, including 35% for OBCs, which included Muslims as a community irrespective of their social and economic status (Krishnakumar 2004; A Alam 2008). After the reorganisation of Kerala in 1956, the quota was increased to 50%, wherein the OBC quota was also increased from 35% to 40%. More importantly, a sub-quota system was introduced for all the groups in the OBC category whereby a fixed proportion was specified separately for each group: 14% for Ezhavas and Thiyyas (from Malabar); 10% for Muslims; 5% for Latin Catholics; 1% for Backward Christians (converts from SCs, STs or OBCs), and 10% for OBCs (Krishnakumar 2004). In 1970, the proportion of seats specified for Muslims within the OBC quota was however increased to 12% in public employment and 8% in professional educational institutions (Krishnakumar 2004).

Similar to Kerala, Karnataka also formulated a unique reservation policy in the sense that the benefits accruing from the opportunities available through the OBC category were extended to the entire Muslim community of the state (excluding the creamy layer). When the reservation policy was first introduced in the state by the then Chief Minister Devraj Urs in 1977, there was no separate quota for Muslims and only 16 castes were included in the OBC category, which however included a few Muslims (Nataraj and Nataraj 1982). The quota was revised in 1986 and a separate quota was introduced particularly for Muslims as a community, whereby 4% of the seats were reserved for them in public employment and education (Bageshree 2012). This system of preferential treatment for Muslims as a community in Kerala and Karnataka received due recognition from the Sachar Committee report for having stood out in extending preferential treatment to the entire Muslim community in their respective states (Sachar 2006: 196).

This institutional expression was sought to be replicated by the Government of Andhra Pradesh in 2004 and 2005, when it passed an ordinance providing 5% reservation to the entire Muslim community of the state. An exclusive “E” subcategory was added to the already existing OBC category for the reason that Muslims in the state were particularly backward and poorer than in other states, which interestingly also found a mention in the government order (Engineer 2004; Government Order qtd in Milli Gazette 2007).

The constitutionality of this ordinance was challenged in the court of law, which, in the absence of specific recommendations from a relevant commission, struck it down on the basis that it violated Articles 14, 15(1), and 16(2) of the Constitution (EPW 2010). However, the state government reintroduced the legislation in 2007 which sanctioned a reduced 4% sub-quota in the government services and educational institutions as against the 5% provided in the earlier attempts (Indian Express 2012). Furthermore, contrary to the earlier attempts when the whole community was intended to be brought under its ambit, the new legislation only sought to identify the backward classes among the community on the basis of an economic criterion (the families whose annual income was more than ₹ 2.4 lakh were excluded) and identified 15 backward groups in the community and enlisted them within the subcategory (Siddique 2008). Having sought to dispense with the contradictions and objections raised against the earlier attempts, the negativity towards it was still much expected. However, unlike the previous occasions, only the allocation of preferential quota in the educational institutions was challenged in the Andhra Pradesh High Court. Although the court called the legislation “unsustainable,” it transferred the case from a three-judge bench to a seven-judge bench, which put the implementation of the legislation in abeyance (Siddique 2008). The state government approached the Supreme Court against the verdict, which upheld the constitutionality of the act and ruled in favour of the Andhra Pradesh government (Siddique 2008). Since it was only the quota in the educational institutions that was challenged, the Muslims in Andhra Pradesh since then were allowed to benefit from the opportunities available to them through 4% reservation of seats in the government services.

Similarly, the state of West Bengal also instituted a separate sub-quota for its backward Muslim population within the OBC preferential treatment policy. Three years after the National Commission for Religious and Linguistic Minorities report had recommended a separate 10% quota for Muslims, the West Bengal government, under the chief ministership of Buddhadeb Bhattacharya in 2010, decided in favour of making its recommendations the basis for instituting an exclusive sub-quota for Muslims. This implementation provided Muslims with an exclusive sub-quota of 10% within the OBC preferential treatment quota. Initially, the quota was very restricted in scope because very few Muslim groups were identified as backward and enlisted within the backward category to be able to benefit from the opportunities available through this exclusive quota. Importantly, the list of Muslim beneficiary groups was revised and updated in 2013 and more and more groups have been identified and enlisted in the category, taking the total number of Muslim beneficiary groups to 83 in the state which covers around 90% of the Muslim population of the state under the quota (Haque 2012).

Similarly, in states like Bihar and Tamil Nadu, the preferential treatment policy for the backward classes, including Muslims, that has been put into place is quite different from what we know of in states like Kerala, Karnataka, West Bengal, and Andhra Pradesh, as well as the other Indian states. In Bihar and Tamil Nadu, although no separate sub-quota within the OBC category similar to Kerala, Karnataka, West Bengal, and Andhra Pradesh has been instituted exclusively for the Muslims of these states, yet most of the Muslims have been covered under the Backward and Most Backward Class categories, which is quite apart from other states where relatively fewer Muslims have been enlisted within the backward class categories.

Reservation for Muslims

More recently, in a significant development regarding the Muslim reservations in the government services and educational institutions, the Maharashtra government in July 2014 passed an ordinance that provided an exclusive 5% sub-quota to Muslims within the backward class category. The ordinance was, however, challenged in the Bombay High Court, which struck down the constitutionality of the Muslim reservation in government services, but allowed the reservation of seats for them in educational institutions (Rashid 2015). However, with the change of government and the coming to power of the Bharatiya Janata Party–Shiv Sena coalition in the state, the ordinance was allowed to lapse by the new government, which however legislated upon the Maratha reservation and introduced an act regarding it (Rashid 2015).

Following the approval of the Supreme Court to the reservation policy for Muslims in Andhra Pradesh, the UPA government decided to seek its permission in providing for reservation in jobs and education for Muslims within the category of OBC. The proposal was however approved by the UPA cabinet in 2011, which issued an executive order that provided for a 4.5% sub-quota to all the religious minorities within the 27% quota for OBCs (Firstpost 2011). The order was challenged in the Andhra Pradesh High Court, which struck it down for being based entirely on religion (Times of India 2012). The government, in order to seek a stay on the high court order, moved to the Supreme Court, which again questioned its validity on the basis that the order was executive in character and had no legislative authorisation behind it. Besides, the National Commission for Backward Classes had not been consulted before rearranging the OBC quota (Krishnan 2012). It is pertinent to mention that the introduction of the sub-quota for the religious minorities was nothing more than a rearrangement of the OBC quota, which grouped religious minorities in an exclusive sub-quota of 4.5% and set aside the rest of the 22.5% for Hindu OBCs. This attempt was perceived more as an attempt by the Congress Party to regain the lost ground with respect to the Muslim constituency and, similar to its earlier attempts, appears politically motivated rather than working sincerely towards enhancing social welfare through preferential treatment (Krishnan 2012). The decision, however, generated more resentment among the Muslims because they were left to compete with other affluent minority communities (Krishnan 2012).

Certain questions need to be raised here. Is the mere inclusion of backward Muslims enough for uplifting them and empowering them economically? Does the mere inclusion of Muslims in the backward category signify that they will necessarily benefit from the opportunities available through the category? A comparative look at the Gopal Singh Committee and Sachar Committee reports reveals that Muslims in the postcolonial Indian state have hardly achieved any significant material affluence despite a significant proportion of the population being enlisted in the backward class category and they, more than any other socio-religious community, remain particularly backward. A statistical analysis of the two reports indicates a sort of redundancy of their inclusion in the backward category since they hardly seem to have made any visible progress, at least when it comes to their representation in the services of the state. The Gopal Singh Committee report in 1983 indicated that Muslims constituted a 3.04% share in the central government services, and after purportedly benefiting from the opportunities available through the backward class category for 15 years, the Sachar Committee report again presented more or less the same picture of their representation in central services. It may be argued that their population is too large to indicate any significant development in their representation within the short span of 15 years. This may partially be true, but a change in merely decimal points in the span of 15 years in fact constitutes no change at all.

Therefore, it is clearly visible that the mere inclusion of Muslims in the backward class category has not been effective in removing their backwardness. What, then, explains their persistent backwardness and under-representation in the government services, despite a significant proportion of the community being included in the backward class category? Has it been a deliberately authored policy of all the governments, irrespective of their political predilections, to keep Muslims out of the power corridors and deprive them of their share in government services? Structural impediments in the form of discrimination by the state recruiting agencies cannot entirely be ruled out, for numerous studies have highlighted the discrimination that Muslims have to face in getting jobs in both government and private sectors (Thorat and Attewell 2007; Sud 2004). However, an answer to this question may not be that simple for there are certain states where an exclusive sub-quota has been instituted for them in the population. Therefore, the relative sanguinity about their socio-economic status in states like Kerala and Karnataka—where their share in government services is positively reflected—also reflects the complexity of the situation. Kerala and Karnataka are the two states that have for long instituted exclusive sub-quotas for the Muslim community, making it difficult for the recruiting agencies to discriminate against them. Yet, their share does not fall in line with the rest of the communities and groups in these states, which brings the role of the community itself and its empowerment into the discussion and the argument that the community cannot be absolved of all the responsibility that it ought to share in its backwardness. Therefore, the reasons for their continuous under-representation remain diverse and debatable and partially their illiteracy and poverty levels have to be factored in as well apart from the state’s negligence and discrimination against the community.1

In the wake of the complexity manifested, the introduction of sub-quotas for the Muslims in government employment as well as education within the backward class category attains a special significance that does not remain confined to ameliorating their socio-economic backwardness, but removing the socially and politically structured impediments in the way of the community towards social empowerment. It may be argued that any religion-based preferential treatment policy contradicts the secular character of the state and is, therefore, completely rendered unconstitutional and invalid. A possible reconciliation to this contradiction may be instituted by sub-dividing the backward class category according to the proportion of the population of the communities and groups enlisted within the category. By dividing the backward class category according to the share of the population of each enlisted community, it becomes consistent with the secular orientation of the postcolonial Indian state where the foundational basis of secularism does not lie in the separation of state and religion, but in the “equal treatment of all religions.”

Preferential Treatment and Postcolonial Policy

There are various concepts that were deployed in delegitimising the preferential treatment for religious minorities in the constituent assembly, which primarily included secularism and national unity, besides equality and availability of fundamental rights. In the constituent assembly, secularism and national unity were invoked frequently in the delegitimising vocabulary of the nationalist elites against the preferential treatment for religious minorities. The legitimating vocabulary suffered a change in the Mandal debate and the focus with respect to preferential treatment was shifted from national unity to social justice.

In this context, Bajpai (2011) argues that any change or a shift in the policymaking towards a particular group should necessitate an evocation of an alternative legitimating vocabulary in defence of the change. In other words, different legitimating vocabularies can be used for arguing for preferential treatment policies for the depressed and marginalised groups. But, the question remains to be addressed: What determines the nature and content of the legitimating vocabulary to be used at a particular instance? The motives and motivations behind the usage of a particular legitimating vocabulary by the politicians and policymakers can hardly be discerned and would also constitute too narrow an explanation.

Taking this vein of argument forward, there emerges political expediency and political exigencies as the chief determinants of a particular legitimating vocabulary. The “disadvantage” that a particular group suffers from and the assistance that it needs, or, in other words, the legitimacy of the group deserving preferential treatment, determines the nature and content of the legitimating vocabulary of the politicians and policymakers to confer preferential treatment on the disadvantaged groups. This argument was confirmed in the Mandal debate when the legitimating vocabulary used by policymakers in Parliament was loaded with different conceptions of social justice, impressing the legitimacy of the group deserving of preferential treatment.

Given the established nature of the disadvantages of the Muslims, which in the contemporary minority-rights discourse is construed mainly in terms of their economic and educational backwardness, the question emerges regarding the efficacy of the preferential treatment policies for Muslims as to what extent the preferential treatment may be given an institutional expression and made applicable to Muslims as a community.

Irrespective of the regional and class variations in Muslim backwardness, their backwardness is generally reflected and incorporated in the minority rights discourse as a phenomenon cutting across the community as a whole, and represents its collective predicament (Mahopatra 2010). The development deficit or the relative backwardness of the Muslims in comparison to other socioreligious communities links backwardness as a crucial component of the minority-rights discourse with respect to the Muslim community. On the other hand, it is necessary to recognise the socio-economic progress that they have been able to make, but statistical analysis indicates that other socioreligious communities have relatively made greater progress, which culminates in the further widening of the socio-economic gap between Muslims and the rest of the socioreligious communities (Sachar 2006: 2, 46–47, 67). However, when the measure of their backwardness is assumed in reference and relation to other socioreligious communities, then it may amply be argued that it is not the backwardness and deprivation that is being resented and is sought to be neutralised. Rather, it is the relative character of the backwardness of the Muslims in comparison to other communities that is being resented. The notion of backwardness has allowed the debate of preferential treatment for the minority communities to further narrow down to the Muslim minority only and has prompted many to seek the extension of the preferential treatment from backward castes of the community to the whole community.

Attempting a Possible Reconciliation

In this context, it is generally argued that preferential treatment for Muslims in educational institutions and in the services of the state can uplift the community from the morass of social deprivation and marginalisation, and effectively reduce the social inequalities between Muslims and other socioreligious communities. This argument of considering the whole community as a backward class and instituting a preferential treatment framework for them constitutes diverse strands and remains based on an array of assumptions. To begin with, the relative backwardness of Muslims is argued to be of an inter-group character, which, as argued above, adduces a relative character to their backwardness and therefore should enable them to be eligible for preferential treatment (Hasan 2011). On the other hand, there are scholars who use the relative backwardness of Muslims as the foundational basis of their argument, argue in reference to democratic essence and inclusiveness as being the essential aspects of a democracy, and reflect upon its substantiveness as the principles and values that inculcate real meaning in a democracy. The exclusion of a community in educational and economic opportunities, it is argued, will affect the overall health of democracy in India and prove detrimental to the socio-economic development of the whole country (Engineer 1988; Puri 1993). Others invoke the moral and legal responsibilities of the postcolonial democratic state in reference to Muslims, arguing that it lies within the ambit of the legal and moral responsibilities of the Indian state to remove the structural obstacles in the way of social, educational, and economic mobility of Muslims (J Alam 2008). This strand relies on the tacit approval of the fact that the relative backwardness of Muslims is an accumulated backwardness due to the continuous deprivation in providing equality of opportunity to them and that the community has generally been discriminated against in the distributive policies and resource allocations of the state, which has provided an exclusive emphasis to the disadvantaged groups. In the presence of preferential treatment for Muslims, it is argued, the identity-based discrimination will no longer exclude and deprive them of the access to the resources of the state and provide them a proportionate share in the distributive policies and resource allocations of the state.

It needs to be pointed out that although the dominant and more pronounced opinion of the Muslims favours the preferential treatment of the Muslim community as a whole, treating the whole Muslim community as a backward class and instituting preferential treatment for them is a move that faces resentment within the community from the lower-caste Muslims and caste communities who are already enlisted within the OBC category. For example, there are some organisations like the All-India Backward Muslim Morcha (AIBMM) who, although advocate for the inclusion of the disadvantaged or the lower-caste Muslims within the OBC quota, remain stridently opposed to what they see as a religion-based quota for the Muslim community (Wright 1997). Similarly, there is a section of the Muslim population which favours the retention of a caste and class basis of preferential treatment, if the process of the extension of preferential treatment is considered for the whole Muslim community (Jenkins 2001).

This, however, does not imply that this strand of thought has assumed an exhaustive consensus over the extension of preferential treatment to the Muslim community or that it has gone uncontested and unchallenged. On the contrary, not only is there a dichotomous strand of thought that regards religion-based preferential treatment as inherently incompatible with the secular character of the postcolonial Indian state, but it has even prevailed in defining and determining the policy and institutional framework for the inclusion of Muslims, despite the overarching evidence of their backwardness and deprivation.

The constitutional impermissibility for the use of religion as a criterion for the extension of the preferential treatment framework and bringing the backward Muslim community under its ambit is often invoked in the constitutional and political discourse against any such extension. Apart from the constitutional impermissibility, the mainstream political discourse reflects upon three kinds of contradictions and impediments that providing an institutional expression to preferential treatment for the Muslim community runs into: (i) religion-based preferential treatment and secularism cannot go hand in hand as the former remains incompatible with the governing principle of secularism; (ii) since Islam is a religion which is egalitarian in character and does not stratify Muslims into categories, it is marked by the absence of any social discrimination among them and in the absence of any social discrimination, the need for preferential treatment does not arise at all; and (iii) the extension of preferential treatment for Muslims would prove detrimental to national unity.

As for the absence of any differentiation in the community, various studies conducted in the field have established that the community remains internally differentiated into caste categories and hierarchies, and the façade of homogeneity and universal equality has been constructed around the community which needs to be shattered in order to reflect the real social stratification and structure of the community (Engineer 2004; Alam 2003; Jenkins 2001). In this context, a differentiated approach is referred to by many as a substantive approach which should be employed to target their backwardness in a spatial and regional pattern, conforming to the pattern of their backwardness, which in a way also remains in complete harmony with the principle of secularism (J Alam 2008).

On the Theme of Backwardness

However, in reference to the pattern of socio-economic backwardness within the community, as has been argued above, notwithstanding the variations in the level of backwardness across the community, the theme of backwardness was introduced as a generalised affair (by the Sachar Committee report), compounded by the notions of discrimination against the community. The notion of discrimination against the community is a structural impediment in a way similar to how caste acts as a structural impediment for SCs with respect to social and economic mobility and precisely emerges as the reason for the treatment of the whole community as backward. Therefore, the idea of preferential treatment should not be seen as the measure of removal of the social and educational backwardness of the community. Rather, it should be seen as the idea of instituting a measure of the removal of the structural obstacles in the way of their social and economic mobility.

However, it must be recognised that the idea of preferential treatment for a religious minority is incompatible and inherently contradictory to the secular orientation of the state. However, in a state where the principal foundation of secularism rests on the principle of non-establishment and not on the principle of separation—which not only recognises the place of religion in the public domain, but wherein the state also engages with religion in its public presence—the contradiction that emerges with religion-based preferential treatment cannot be argued to be a character of degenerating or disfiguring contradiction, and can be contained within the secular character of the state.

This contradiction can further be precluded by introducing a paradigmatic shift in the foundational basis of minority rights which, however, cannot be seen as independent of state intervention and largely remains a function of the democratic character of the state. The commitment and political will for the protection of religious minorities derives its clout from the governing principle of secularism and remains based on it. Whereas, the cultural rights provided in the Constitution cannot be argued to be of any effective influence in uplifting them from the morass of educational and economic backwardness.

Any institutional expression for state intervention in uplifting them from the morass of social deprivation and bringing them at par with other socioreligious communities is, however, argued to exist in contradiction with the foundational basis of minority rights and the governing principle of the postcolonial Indian state. This contradiction requires defining the community as a socio-economic category rather than a religious community, which, on the other hand, necessitates a paradigmatic shift in the foundational basis of minority rights from secularism to a more rational basis of social justice. Since there exists an intrinsic relationship between their identity and backwardness, this paradigmatic shift remains equally significant in restructuring their separate identity. The introduction of a shift in the foundational basis of minority rights will not only neutralise the social and educational backwardness of the community, but will also prove equally significant in reconstructing the separate identity of the community. Therefore, the argument follows that defining the community in socio-economic parameters remains a necessity without which social and educational backwardness can hardly be approached, and the existing framework of non-preference and non-discrimination remains ill-equipped to approach and nullify their educational and economic backwardness.

However, in the political and legal constitutional discourse of the postcolonial Indian state, religious minorities, particularly Muslims, despite the significant evidence of their deprivation and backwardness, are still considered ineligible for preferential treatment. In the absence of any preferential treatment for Muslims, the emphasis was shifted from their definition on the basis of socio-economic parameters to that on the basis of their identity. This not only resulted in a situation where the “inequalities and deprivation were not adequately recognised and hence not frontally addressed,” but also emphasised their religious identity in the attempt to recognise them as a religious minority (Hasan 2011: 47). The widening of the gap between Muslims and other socioreligious communities gave rise to the feelings of unequal treatment and discrimination in the community. This feeling of inequality and discrimination that persists among the Muslims requires certain effective institutional arrangements, which, in turn, rest entirely on the political will and commitment to enhance the social welfare of Muslims.

Although the recognition of the minorities’ deprivation and marginalisation has prompted successive governments to institute a wide variety of policy initiatives and programmes to promote their social, economic, and educational development, these initiatives have been unable to tackle the social and educational backwardness of the Muslims in particular. Here, certain questions need to be raised: If social justice can be a legitimating factor for instituting a preferential framework for one backward caste, why cannot it be allowed to serve as a legitimating factor for instituting a preferential framework for one backward religious community? Is social justice of a lesser value than secularism as a principle? What gives secularism a relative preference over social justice? If secularism is considered more sacred and has a relative preference over social justice, does it not imply that the state is more important than the people constituting it? These are some of the important questions that need to be answered before this regime of continuing negligence towards the plight of Muslims and their ineligibility for preferential treatment can be granted any empirical or normative assent. The answers to these questions remain much needed in the political discourse of the postcolonial Indian state, for, these answers would, more than anything else, provide a clear idea of the public philosophy of the state.

But, before I proceed, a possible objection against contrasting social justice and secularism against each other has to be answered; an objection which situates social justice within secularism to make an argument that in the Indian context, social justice is already contained in the principle of secularism and, therefore, they really cannot be separated from each other or set against each other as different ideas. This kind of argument, however, emerges to be very reductive in nature for it fails to bring in the distinction between the formal universalist conception of equality and the more substantive one.

As Nivedita Menon (1998) has argued, secularism in colonial India assumed more matter than what traditional conceptualisation would allow in the sense that secularism went beyond the traditional state–religion relationship and served some essential aspects of the nation-state project, like bourgeois democracy and social justice, but only to the extent that equality in a formal legal sense and the capitalist transformation of the economy is achieved. In other words, this is to say that social justice may be argued to be contained within secularism, but only to the extent that formal equality is achieved. Put differently, this kind of argument is relevant only when the context is “equal treatment under the law” and not the “impact of law,” and the context in which the relationship between social justice and secularism is evaluated does not constitute the denial of “equal treatment under the law,” but the “impact of law.”

Therefore, when we intend to move beyond formal equality and enter into the realm of substantive equality—where the policy framework as well as the policies are intended to be designed to facilitate the economic equality which has hitherto been either denied or remained elusive within the non-preference, non-discrimination framework—a distinction necessarily has to be established and the two have to be set apart: one as a different ideal of policy formation, and the other as a different principle of governance.

In Conclusion

While it is clearly visible that in the contemporary political discourse and public philosophy of the state, secularism has a relative preference over social justice, it, however, needs to be justified in the public philosophy of the state. This continued preference for secularism over social justice and the minimalist interference in the non-preference, non-discrimination framework in the postcolonial Indian state has been unable to provide Muslims with more representation in the governance structures, enhance their social and economic position, and tackle their relative deprivation. And, if the non-preference, non-discrimination framework somehow remains inefficient or incapable in enhancing the social welfare of the Muslims, it becomes necessary that the continuous determination of the policies and their expression within that framework be explained and justified. Therefore, the continuous clinging on to not only the non-preference, non-discrimination framework, but the persistent relative preference to secularism over social justice has to be justified, informed through reason and explained in the public philosophy of the state. Critical issues demand critical answers. A simplified preference for secularism over social justice cannot satisfy the impulse of its criticality and serve as a justification for clinging on to the non-preference, non-discrimination framework by the state in approaching their backwardness.

Note

1 I do not think historical forces can be given much credit for the disparity in the levels of backwardness and poverty prevailing in the community. It is generally argued that mass migration to Pakistan was much more pronounced in North India, which left behind a huge chunk of lower-class Muslims in the North as against in the South where the migration was near absent and the middle class therefore was relatively stable. Therefore, it is argued that the disparity in the representation in the North and South of the country primarily arises because of the near absence of the middle class in the North after the partition (Hasan 1998; Hasan 2011; Engineer 2006). If that is the case, why do Kerala and Karnataka, despite having instituted preferential treatment policy for Muslims for long, still reflect levels of representation not commensurate with their proportion in the population, that too in a situation where their middle class was relatively present and stable. Then, either the sense of discrimination that prevails in the community has to be accepted as a fact that acts as a politically structured impediment in the way of the community, or the preferential treatment policy in the form of sub-quotas within the backward category has to be accepted as completely redundant.

References

Alam, Anwar (2003): “Democratisation of Indian Muslims: Some Reflections,” Economic & Political Weekly, Vol 38, No 46, pp 4881–85.

Alam, Aniket (2004): “Quota for Muslims,” Frontline, Vol 21, No 17.   

Alam, Javeed (2008): “The Contemporary Muslim Situation in India: A Long-term View,” Economic & Political Weekly, Vol 43, No 2, pp 45–53.

Bader, Zubair A (2015): “Difference and Reservation: A Reading of the Constituent Assembly Debates,” History and Sociology of South Asia, Vol  10, No 1, pp 1–21.

Bageshree, S (2012): “The Saga of OBC Reservation for Muslims in the State,” Hindu, 23 July,
http://www.thehindu.com/todays-paper/tp-national/tp-karnataka/the-saga-of-obc-reservation-for-muslims-in-the-State/article3671742.ece.

Bajpai, Rochana (2010): “Minority Representation and the Making of the Indian Constitution,” Politics and Ethics of the Indian Constitution, Rajeev Bhargava (ed), New Delhi: Oxford University Press.

— (2011): Debating Difference: Group Rights and Liberal Democracy in India, New Delhi: Oxford University Press.

Engineer, Asghar Ali (1988): “Indian Muslims since Independence: In Search of Integration and Identity,” Third World Quarterly, Vol 10, No 2, Islam & Politics, pp 818–42.

— (2004): “Islam and Muslims in India: Problems of Identity and Existence,” Oriente Moderno, Vol 23, No 84, Nr 1, pp 71–82. 

— (2006): “Indian Muslims—Reservation or No Reservation?” Centre for Study of Society and Secularism. 

EPW (2010): “Reservations for Religious Minorities,” Economic & Political Weekly, Vol 45, No 2, pp 5–6.

Firstpost (2011): “Cabinet Approves 4.5% Quota for Minorities within OBCs,” 22 December, http://www.firstpost.com/india/cabinet-approves-4-5-percent-quota-for-minorities-within-obcs-163535. html.

Haque, Zaidul (2012): “Mamata Includes More Muslims in OBC, Covering 87% of the Community,” Two Circles, 18 May, http://twocircles.net/2012may18/mamata_includes_more_ muslims_obc_covering_87_community.html.

Hasan, Mushirul (1998): Legacy of a Divided Nation: Indian Muslims since Independence,  Michigan: Westview Press.

Hasan, Zoya (2011): Politics of Inclusion: Caste, Minorities and Affirmative Action, New Delhi: Oxford University Press.

Indian Express (2012): “SC to Hear Centre’s Appeal on 4.5% Quota for Minorities,” 9 June, http://indianexpress.com/article/india/latest-news/sc-to-hear-centres-appeal-on-4-5-quota-for-minorities/.

Jenkins, L D (2001): “Becoming Backward: Preferential Policies and Religious Minorities in India,” Commonwealth & Comparative Politics, Vol 39, No 2, pp 32–50.

Krishnakumar, R (2004): “A History of Reservation,” Frontline, Vol 21, No 17, .

Krishnan, P S (2012): “Reservations for Muslims in India: A Step for Inclusive Development,” Economic & Political Weekly, Vol 47, No 33, pp 60–65.

Mahopatra, Bishnu (2010): “Minorities and Politics,” Oxford Companion to Politics in India, Niraja Gopal Jayal and Pratap Bhanu Mehta (eds), New Delhi: Oxford University Press.

Menon, Nivedita (1998): “State/Gender/Community: Citizenship in Contemporary India,” Economic & Political Weekly, Vol 33, No 5, pp PE3–PE10.

Milli Gazette (2007): “Andhra Pradesh Govt GO on Muslim Reservations and the Recommendations of AP BC Commission Report,” 23 July, http://www.milligazette.com/dailyupdate/
2007/200707231_Andhra_Pradesh_GO_Muslim_
reservations_backward_classes.htm
.

Mondal, Seik Rahim (1996): “Tradition versus Modernity in Muslim Society: An Analysis of Social Movements among Muslims in India,” Islam and the Modern Age, Vol 27, No 2,
pp 105–26.

Nataraj, L and V K Nataraj (1982): “Limits of Populism: Devraj Urs and Karnataka Politics,” Economic & Political Weekly, Vol 17, No 37, pp 1503–06.

Puri, Balraj (1993): “Indian Muslims since Partition,” Economic & Political Weekly, Vol 28, No 40, pp 2141–49.

Rashid, Omar (2015): “Maharashtra Scraps Muslim Quota,” Hindu, 5 March, .

Sachar, Rajindar (2006): “Social, Economic and Educational Status of the Muslim Community of India: A Report,” Prime Minister’s High Level Committee, Cabinet Secretariat, Government of India, New Delhi.

Siddique, Mohammed (2008): “SC Allows 4% Muslim Quota in AP,” Rediff.com, 5 August, http://www.rediff.com/news/2008/aug/05ap.htm.

Sud, Nikita (2004): “‘There Are No Non-Gujaratis in This Village’/‘We Can Recognise a Waghri from His Chaal’: Constructing and Contesting a Gujarati–Hindu Identity,” paper prepared for the workshop on “Engagements with Tradition in the Gujarati World,” School of Oriental and African Studies, London.

Thorat, Sukhdeo and Paul Attewell (2007): “The Legacy of Social Exclusion: A Correspondence Study of Job Discrimination in India,” Economic & Political Weekly, Vol 42, No 41, pp 4141–45.

Times of India (2012): “Andhra Pradesh High Court Quashes Centre’s 4.5% Sub-quota for Minorities,” 28 May, https://timesofindia.indiatimes.com/india/Andhra-Pradesh-high-court-quashes -Centres-4-5-per-cent-sub-quota-for-minorities /articleshow/13607208.cms.

Williams, Rina Verma (2012): “Making Minority Identities: Gender, State and Personal Law,” Minority Studies, Rowena Robinson (ed), New Delhi: Oxford University Press.

Wright, Theodore P Jr (1997): “A New Demand for Muslim Reservation in India,” Asian Survey, Vol 37, No 9, pp 852–58.

Updated On : 19th Oct, 2019

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