There is nothing in the Constitution which bars identification of beneficiaries of public programmes based on religion.
Of late, there has been a debate on whether public programmes such as school education, scholarships, health-care delivery and access to microcredit can be targeted at beneficiaries based on religion; some consider this ‘unconstitutional' and argue that it amounts to discrimination. I highlight the constitutional provisions and argue that there is nothing in the Constitution which bars identification of beneficiaries based on religion. Religious identity is listed on a par with race, caste, sex and place of origin, all in the same line, and these other traits are used to identify beneficiaries.
The Constitution, resolves to secure to all citizens .... ‘equality of status and of opportunity,' and directs the government to be proactive to ensure equal opportunity. Equality, equal access and equal opportunity concepts are elaborated in Articles 14 (right to equality), 15 (access to education) and 16 (public employment). The ‘... state shall not discriminate.... on grounds only of religion, race, caste, sex, place of birth ....' .
Clause (4) of Article 15, states, “Nothing .... shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” Interestingly, ‘socially and economically backward classes (SEBC)' precedes mention of the SCs and the STs. Clause (5) directs the state to make a special provision by law for the advancement of the ‘socially and educationally backward classes' ..... through admission to educational institutions including private, aided or unaided.
Article 16 provides for equal opportunity in government employment, and cautions the state not to discriminate on the grounds of religion, race, etc..; and clause (4) provides for making provisions for reservation of appointments in favour of ‘any backward class' which .... in the opinion of the state, is not adequately represented in the services under the state. Thus, the onus of identifying a ‘backward group/class' rests with the state.
All explanations of Articles 14, 15 and 16 emphasise that the group classifications should not be arbitrary, must be compatible with the ‘objective of classification' and pre-existing inequality should not be ignored. Therefore, any group of citizens (not arbitrarily formulated), including those named in the Constitution, namely religion, race, caste, sex, descent, and place of birth/residence should form the basis for backwardness. Backwardness can also be assessed based on occupation, workplace, age, language, etc., which are not arbitrary in nature.
The state is directed by the Constitution “to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life” [Article 38(1)]. An amendment in 1976 states “The state shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations [Article 38(2)].”
Generally, the government collects and collates data for the SCs and STs; for example, to measure levels of literacy and higher education, share in state employment, etc. Similarly, multidimensional gender discrimination and regional disparities reflected from the ‘place of birth/origin/residence' are measured. One fails to understand, therefore, as to why an assessment based on ‘religion' is taboo. Therefore, the public policy view that religious comparisons in the levels of achievement in development indicators are ‘unconstitutional' appears due to a lack of understanding of the spirit and intentions of the Constitution. Religion in India is a dominant social identity next only to sex and caste and, therefore, it cannot be singularly sidelined or ignored.
Further, religious identity lends itself to a double whammy. Studies show unacceptably large compounding effects of sex, age and regional discrimination interacting with those linked to religion. Muslim and Dalit women (children) living in less developed States are the most excluded of all types of socio-religious groups in India.
Empirical evidence is essential to developmental knowledge. It is reassuring that modern empirical and econometric methodologies accurately estimate and identify the characteristics of backwardness. Caste and religion stand out as dominant social identities of backwardness along with occupation (source of household income), residential and regional identities. Empirical analysis of process indicators (literacy, higher level education, formal employment, access to banking and credit, political participation, etc.) according to religious communities excluding Hindus, confirm Muslim placement below the line of average. If the SCs/STs are singled out and compared with religious groups, one finds Muslims in most of the measures about the same or even lower. With adjustments for initial conditions, the conditions of Muslims relative to the SCs/STs have worsened over the years. Such evidence suggests that policies and programmes of the national and State governments are less accessible to Muslims, to the extent that they can be labelled as discriminatory.
Applying the standards set by the Constitution, one can argue the existence of a systemic bias based on religion. The only way to eliminate such bias is to ensure equal opportunity and access to programmes which generate benefits proportional to the size of the population. Naming programmes specific to the deprived community even if has to be done by caste and religious identity must be the public choice. It is clear that there is no catch-22 situation as has often been made out to be and it is not even ‘unconstitutional.' Since the Constitution grants the state the responsibility of identifying ‘backward communities,' it is the bounden duty of the national and State governments to bring the caste and religious communities facing exclusion especially the Muslims, into the fold of mainstream policies and programmes as recommended by the Sachar Committee report. Note that Article 25, while setting the parameters of the right to freedom of religion, has named selected religions to bring a certain degree of clarity as to what constitute the Hindus; and this Article does not preclude naming Muslims and Christians (two large religious communities) in public documents and legal enactments.
(The writer is with the Centre for Research and Debates in Development Policy, New Delhi. He was Member-Secretary, ‘Prime Minister's High Level Committee on Muslims in India' — 2005-06, and Adviser, ‘National Commission to Review the Working of the Constitution' — 2001-02.)
Keywords: public programmes, religion, welfare measures
Minto-Morley reforms which triggered the communal politics in India are a gruesome reminder of the harm policies based on religion could cause. And just about hundred years afterwards,we are again falling in the trap of religion based reservation,this time in the social sphere.There is no doubt about the need to uplift the deprived section among Muslims.But there are other ways to do so.Why reservation? Wont it be like opening a pandoras box?Wont other religious communities also demand such privileges?And there is no reason to believe the vote hungry political parties wont be tempted to fulfill those demands.
The author may please visit Mehdipatnam in Hyderabad to see how poor are the Muslims. There is also a creamy layer among Muslims. They should not benefit from such policies. Only economic poverty should be used as a criteria for reservation.Religion, caste or even sex cannot beused for reservation of any sort. The Women's Reservation Bill is not by any means constitutional. It is seen where womwn win elections through reserved seats, the men behind them call the shots. This whole business of reservation is only dragging the country down and is a source for vote bank politics.
There is no point in arguing whether basing reservation on religion is constitutional or not.The constitution is open to interpretations and amendments.However it is worth wondering whether it is not the policy of our governments not to make and implement any worthwhile policies for marginalized groups?And when the inequalities are created,to take shelter behind the policy of reservation. Is reservation the panacea of all ills in the country?
India is a free country and I can change my religion the day I want to. On the other hand sex is not something easy to change. Same should be held true for caste too. This is the reason why there should be no religion or caste based policies, but just based on economical backwardness.
Reservation is on the basis of backwardness is the need of nation to proper development and progress
It has been 60 years after independence and the minority communities are there just as they were 60 years before in-spite of government providing programs for the benefits of minorities (major of them being reservations for minority classes for vote bank politics)... I feel there should not be any kind of reservation based on religion .... Allocation of seats should be purely based on merit and competence... If this is kept as basis then surely, be it any community minority or majority, be it any religion hindu or muslim they will surely succeed and will eventually result in the upliftment of whole community...and our country.
Nicely crafted lead by Abusaleh. Writer is justified in mentioning various Articles of Constitution to prove his points- that all are equal before Constitution except some ifs and buts mentioned in Constitution.Like equality of status and opportunity (Articles 14, 15, 16 of the Constitution and also important point in the cluaee (4) of Article 15,in which it is clearly mentioned that govt must enact laws for advancement of educationally and socially backward class or SC\ST.Muslims or backwardsordalits or tribal are not getting any extra benefit by government-they are getting their due shares.Specially Muslims are not getting any thing extra on religion basis.They are getting extra treatment because they are yet to get equal opportunity and status in education and social upliftment in comparision to other higher caste inthe countrty.People are mistaken that Muslims are given any thing on religious ground to woo them! my blog www.kksingh1.blogspot.com
This is a indeed a in-depth interpretation of the fundamental rights. True, it is the responsibility of the states and the national govts to safegaurd the rights of the backward class, SC's and ST's. But, wouldn't adding the flavour of religion to an already strained development agenda muddy the waters. Communal harmony exists as long as both communities are either rich or poor, there is no intermediate. If at all religion based schemes are introduced, it can very well be misused and given communal colours and the politicians can high jack the purpose of the scheme. Much needs to be done before making our feet wet.
Apropos of the arguments presented in ‘Constitution for inclusive policies’, writer has rightly expounded the constitutional powers of legislature to frame laws for reservations based on any group of citizen (not arbitrarily formulated). However enacting a law just by confirming constitutional validity may not be appropriate if viewed holistically. As religion based matters specially including Hindu and Muslim are sensitive in our society, legislating such laws will surely frown the eyebrows of deprived sections of other religions. Who will guarantee that unlike our experience of the past it will not deteriorate the electoral politics? Being a secular state its better for society to demand their rights in name of ‘deprived’ or ‘dalit’ or ‘pichda’ rather than creating another furore in our polity.
No doubt underprivileged and under developed section of society should be provided positive discrimination to ensure equity but the basis of providing reservation should not be caste and religion as it further deepen the valley between various section of society. Govt. should adopt multipronged approach like providing reservation on the basis of economic status and area base approach. While taking steps to uplift backward section govt. should be careful that people living at just above the line should not fall below the line. It is like choosing between the devil and deep sea.
we often talk about the backwardness of a community, but how to identify a class to be backward has always been a problem for us. An entire community as whole can never be backward, that is where we commit mistake when we declare a certain class of people as backward. obviously there have been caste , groups, where the number of backward people might be on higher side but yet, even this higher degree of backwardness should not construed to mean as entire community being backward. financial deprivation is a factor which is basically a cause for the backwardness of an individual, so this could be one of the criteria in identification of beneficiary because all other backwardness namely, educational, social etc, flows from it. and when someone has been identified as financially backward then no other question regarding his religion, caste, language etc should arise.
Though its important for equal opportunity and access to programmes which generate benefits but what do you mean by "proportional to the size of the population".In fact for any scheme or program to be succeessful, the policy maker must look into the respective level of deprivation of that community..It also matters a lot where do you stand in the competition.Making policies keeping in view the proportionality of population will only help perpetuate the problem, if the level of destitution of that community is not looked into. Anyways, yours is a good and timely take on the issue.
Why is it that every time the debate includes religion, people tend to shoot from constitution's shoulder. As I see it, the only reason the constitution allows us to provide reservations is to level the field of competition. I am no lawyer but I do understand the essence our constitution. One of India's richest men is a muslim, most of bollywood comprises of Khans, other examples do exist. But its clear that the faith is not devoid of opportunity.
Still if they want to provide it, does it mean a section of the society which believes is a particular faith is backward. Is this a reflection of the faith, to get reservation based on that belief. In other view, does it mean, if I convert to Islam, I will belong to a backward faith? If this has nothing to do with faith, its plain electoral politics and justifying it with the constitution is a heinous act.
Making policies based on religion for chiping away economic inequalities will only increase affinity for identifying with a religious group. If Muslims as a group educationally and economically backward, then why policies cannot be designed on the basis of economic backwardness rather than religion? Such decisions are not within the spirit of the Constitution - rather they are divisive. I am surprised that The Hindu is actually supporting this move;given the fact that they oppose any action based on religious affinity or identification - this was most noticeable in the context of any bill or acts favoring Hindus.
The history tells that there was widespread discrimination towards people belonging to the backward classes, SC & ST. They were denied basic educational, social and religious opportunities. And hence its only fair that public programs be aimed towards them for their upliftment as this discrimination is the cause for there backwardness. But when you talk of religious based backwardness, i ask you what is the cause that some religions are backward compared to other? Surely the people themselves are responsible for their backwardness. And in a country where 41% of people are below poverty line, shouldnt the government funds be used to help them instead of aiming to reduce so called backwardness of people based on religion!
Dear Mr. Author,Please answer the following questions: 1. Why after six decades of independence, we have not been successful in bringing backward/SC/STs communities to the mainstream of development, despite the targeted public policies towards these communities? 2. Why the condition of Dalits in UP has not improved significantly despite having Dalit women Chief Minister from last 5 yrs in full majority? 3. Why the targeted communal voilence against Christians in Orissa never stops? 4. Why the naxal areas are in abject poverty despite the govt being aware that development can end the naxalism? The answers to all these questions is only one "LACK OF POLITICAL WILL". I agree with you that conditions of Indian muslims is not what it should have been after so many years of independence, but I am sure that whatever targeted public policies you frame for muslims they would end up in provoking communal politics. Policies should be targeted only the basis of economic backwardness.
There is a word in the constitution - "secular". Regardless of the meaning that political parties and religious groups attribute to it, it means and can mean only one thing -- the government cannot discriminate for or against based on religion, thereby preventing it from floating programmes aimed at individuals based on their religion, or fund organizations that further a religious agenda.
I am of the opinion that targeting should be based only on nonavailability of a basic living standard, and two individuals in the same plight should not be discriminated based on gender, religion, caste, political preferences, or any other real or perceived identity. Group identity based reservations and entitlements create rifts in the society helping political parties to carefully nurture vote banks.
Reservation on the basis of population of Muslims will do well as they are very much behind in the matter of education and standard of living.
A spin can be generated almost on anything.Socially ostracized,SC/ST cannot be compared to the poor of Minority Communities.So POVERTY should be irrespective of religion.Doing otherwise is absurd and shows vested interests. The case of any Minority Community may "look" unjustified based on "numbers alone",since they are a minority!Obviously the number belonging to the Majority Community will be more.It in a way justifies POVERTY based on economic condition alone,as the Majority of the Majority Community are POOR. Reservation for the sake of votes based on religion is simply UNJUSTIFIED.
Issue is backwardness. We should focus on backwardness irrespective of caste, religion, sex, region etc. If everyone can't have full/equal opportunity (definitely true in any society) than by design some will be left behind. Given that, Government should identify overall backwards and provide oppurtunity to them. Lets stop dividing/slicing society in different names. Lets work to build unified stronger India.
Religion,race,caste,sex are the things which shape the basic traits of a human being and bound them to particular customs and culture.so it's very obvious that different group of people would be having differences among themselves.In india we respect the diversity of our culture and our constitution also provides adequate provision for them to be get equal opportunity in all aspect of life.But the bigger question is that is it sufficient?by just making laws and brining programmes can we change the aggravating situation?the answer itself will give rise to several other questions.Decreasing tollerance among people is giving the mirror view on this issue.time has come to adopt true sprit of constitutional ethos not by words but by practice.
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